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As filed with the Securities and Exchange Commission on October 4, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
AVISTA CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
Washington 91-0462470
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
1411 East Mission Avenue
Spokane, Washington 99202-2600
(Address of principal executive offices, including zip code)
AVISTA CORPORATION
2000 NON-OFFICER EMPLOYEE LONG-TERM INCENTIVE PLAN
(Full title of the plan)
J. E. ELIASSEN
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
AVISTA CORPORATION
1411 East Mission Avenue
Spokane, Washington 99202-2600
(509) 489-0500
(Name, address and telephone number, including area code, of agent for service)
______________________
Copy to:
LINDA A. SCHOEMAKER
PERKINS COIE LLP
1201 Third Avenue, 40/th/ Floor
Seattle, Washington 98101-3099
______________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Number to Be Offering Price Per Aggregate Offering Registration
to Be Registered Registered(1) Share(2) Price(2) Fee(4)
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<S> <C> <C> <C> <C>
Common Stock, no par value 2,500,000 $21.78 $54,450,000 $14,375
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Preferred Share Purchase Rights 2,500,000(3)
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</TABLE>
(1) Together with an indeterminate number of additional shares (including the
associated Preferred Share Purchase Rights) which may be necessary to
adjust the number of shares reserved for issuance pursuant to such
employee benefit plans as the result of any future stock split, stock
dividend or similar adjustment of the Registrant's outstanding Common
Stock.
(2) Estimated pursuant to Rule 457(c) under the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee. The
price per share is estimated to be $21.7800 based on the average of the
high ($22.5000) and low ($21.0625) sales prices for the Common Stock as
reported on the New York Stock Exchange on October 2, 2000.
(3) The Preferred Share Purchase Rights (the "Rights") are appurtenant to and
will trade with the Common Stock. The value attributable to the Rights,
if any, is reflected in the market price of the Common Stock.
(4) Since no separate consideration is paid for the Rights, the registration
fee for such securities is included in the fee for the Common Stock.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference in this Registration
Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, which contains audited consolidated financial
statements for the most recent fiscal year for which such statements have been
filed;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarters
ended March 31 and June 30, 2000, the Registrant's Current Reports on Form 8-K
dated January 6, January 25, June 21, and July 26, 2000, and any other reports
filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), since the end of the fiscal year covered by the
Annual Report on Form 10-K referred to in (a) above.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof and prior to the filing of a
post-effective amendment, which indicates that the securities offered hereby
have been sold or which deregister the securities covered hereby then remaining
unsold, shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
Item 4. DESCRIPTION OF COMMON STOCK
The authorized capital stock of the Company consists of 10,000,000 shares
of Preferred Stock, cumulative, without nominal or par value, which is issuable
in series, and 200,000,000 shares of Common Stock without nominal or par value.
Following is a brief description of certain of the rights and privileges of the
Common Stock of the Company. For a complete description, reference is made to
the Company's Restated Articles of Incorporation, as amended (the "Articles"),
and to the laws of the State of Washington. The following summary, which does
not purport to be complete, is qualified in its entirety by such reference.
DIVIDEND RIGHTS
After full provision for all Preferred Stock dividends declared or in
arrears, the holders of Common Stock of the Company are entitled to receive such
dividends as may be lawfully declared from time to time by the Board of
Directors of the Company.
VOTING RIGHTS
The holders of the Common Stock have sole voting power, except as indicated
below or as otherwise provided by law, and each holder of Common Stock is
entitled to vote cumulatively for the election of directors. If dividends
payable on any shares of Preferred Stock shall be in arrears in an amount equal
to the aggregate amount of dividends accumulated on such shares of Preferred
Stock over the eighteen (18)-month period ended on such date, the holders of
such stock become entitled, as one class, to elect a majority of the Board of
Directors, and the holders of the Common Stock, voting as a single class, shall
be entitled to elect the remaining directors of the Company. Such right does not
cease until all defaults in the payment of dividends on the Preferred Stock
shall have been cured. In addition, the consent of various proportions of the
Preferred Stock at the time outstanding is required to adopt any amendment to
the Articles which would authorize any new class of stock ranking prior to or on
a parity with the Preferred Stock as to certain matters, to increase the
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authorized number of shares of the Preferred Stock or to change any of the
rights or preferences of outstanding Preferred Stock.
CLASSIFIED BOARD OF DIRECTORS
Both the Articles and the Company's Bylaws, as amended (the "Bylaws"),
provide for a Board of Directors divided into three classes, each of which will
generally serve for a term of three years, with only one class of directors
being elected in each year. The Articles and Bylaws also provide that directors
may be removed only for cause and only by the affirmative vote of the holders of
at least a majority of the Common Stock. The Articles and Bylaws further require
an affirmative vote of the holders of at least 80% of the Common Stock to alter,
amend or repeal the provisions relating to the classification of the Board of
Directors and the removal of members from, and the filling of vacancies on, the
Board of Directors.
CHANGE IN CONTROL
The Articles contain a "fair price" provision which requires the
affirmative vote of the holders of at least 80% of the Common Stock for the
consummation of certain business combinations, including mergers,
consolidations, recapitalizations, certain dispositions of assets, certain
issuances of securities, liquidations and dissolutions involving the Company and
a person or entity who is or, under certain circumstances, was, a beneficial
owner of 10% or more of the outstanding shares of Common Stock (an "Interested
Shareholder") unless (a) such business combination shall have been approved by a
majority of the directors unaffiliated with the Interested Shareholder or (b)
certain minimum price and procedural requirements are met. The Articles provide
that the "fair price" provision may be altered, amended or repealed only by the
affirmative vote of the holders of at least 80% of the Common Stock.
PREFERRED SHARE PURCHASE RIGHTS
Reference is made to the Rights Agreement, dated as of November 12, 1999
(the "Rights Agreement"), between the Company and The Bank of New York, as
Rights Agent, filed with the Commission. The following statements are qualified
in their entireties by such reference.
General
On November 12, 1999, the Company adopted a new shareholder rights plan
(the "Plan") to replace the Company's existing rights plan which expired on
February 16, 2000. Under the Plan, the Company granted one preferred share
purchase right (a "Right") on each outstanding share of Common Stock to holders
of Common Stock outstanding on February 15, 2000 or issued thereafter. The
description and terms of Rights are set forth in the Rights Agreement.
Each Right entitles the registered holder, subject to regulatory approvals
and other specified conditions, to purchase one one-hundredth of a share of the
Company's Preferred Stock, without par value (the "Preferred Stock"), at a
purchase price of $70.00 (the "Purchase Price"). The Rights will be exercisable
only if a person or group acquires beneficial ownership of 10% or more of the
outstanding shares of Common Stock, or commences a tender or exchange offer the
consummation of which would result in the beneficial ownership by a person or
group of 10% or more of the outstanding shares of Common Stock.
Until that time, the Rights will be evidenced by and will trade with the
shares of Common Stock. The Rights will expire on March 31, 2009 unless the
Company first redeems or exchanges them, in each case as described below.
The purchase of stock pursuant to the Rights may be subject to regulatory
approvals and other specified conditions. Under no circumstances will a person
or group that acquires 10% of the Common Stock be entitled to exercise Rights.
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"Flip-In"
If any person or group acquires beneficial ownership of 10% or more of the
outstanding shares of Common Stock, each Right will entitle its holder to
purchase that number of shares of Common Stock or, at the option of the Company,
Preferred Stock, which has a market value at that time of twice the Purchase
Price.
"Flip-Over"
In the event that any person or group has acquired beneficial ownership of
10% or more of the outstanding shares of Common Stock, and the Company
consolidates or merges with or into, or sells 50% or more of its assets or
earning power to, any person or group, each Right would instead entitle its
holder to purchase the acquiring company's common shares having a market value
of twice the Purchase Price.
Exchange
If a person or group acquires beneficial ownership of more than 10% but
less than 50% of the outstanding shares of Common Stock, the Company may
exchange each outstanding Right for one share of Common Stock or cash,
securities or other assets having a value equal to the market value of one share
of Common Stock. That exchange may be subject to regulatory approvals.
Redemption
The Company may redeem the Rights, at a redemption price of $0.01 per
Right, at any time until any person or group has acquired beneficial ownership
of 10% or more of the outstanding shares of Common Stock.
Certain Adjustments
The Purchase Price, the amount and type of securities covered by each Right
and the number of Rights outstanding will be adjusted to prevent dilution in the
event of a stock divided on, or a subdivision, combination or reclassification
of, the Preferred Stock, if holders of the Preferred Stock are granted certain
rights, options or warrants to subscribe for Preferred Stock or securities
convertible into Preferred Stock or equivalent preferred shares at less than the
current market price of the Preferred Stock, or upon the distribution to holders
of the Preferred Stock of evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or warrants (other than
those referred to above).
With certain exceptions, no adjustments in the Purchase Price will be made
until cumulative adjustments amount to at least 1% of the Purchase Price. The
Company will not issue fractional shares of Preferred Stock other than in
integral multiples of one ten-thousandth of a share. Instead, the Company will
make an adjustment in cash based on the market price of the Preferred Stock on
the last trading date prior to the date of exercise.
Amounts Outstanding
The Company distributed one Right to shareholders of the Company for each
share of Common Stock owned of record by them at the close of business on
February 15, 2000. Until the earliest of such time as any person or group
acquires beneficial ownership of 10% or more of the outstanding shares of Common
Stock, March 31, 2009, or the redemption of the Rights, the Company will issue
one Right with each share of Common Stock that is issued after February 15, 2000
so that each outstanding share of Common Stock will have an appurtenant Right.
The Company has initially authorized and reserved 600,000 shares of Preferred
Stock for issuance upon exercise of the Rights.
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Amendments
The Company may amend the Rights Agreement in any respect until any person
or group has acquired beneficial ownership of 10% or more of the outstanding
shares of Common Stock. Thereafter, the Company may amend the Rights Agreement
in any manner which will not adversely affect the holders of the Rights in any
material respect.
The Rights have certain anti-takeover effects. The Rights may cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Company's Board of Directors, except pursuant to an
offer conditioned on a substantial number of Rights being acquired or redeemed.
The Rights should not interfere with any merger or other business combination
approved by the Board of Directors of the Company prior to the time that a
person or group has acquired beneficial ownership of 10% or more of the Common
Stock since until such time the Rights may be redeemed, or the Plan amended, as
described above.
LIQUIDATION RIGHTS
In the event of any liquidation of the Company, after satisfaction of the
preferential liquidation rights of the Preferred Stock, the holders of the
Common Stock would be entitled to share ratably in all assets of the Company
available for distribution to shareholders.
PRE-EMPTIVE RIGHTS
No holder of any stock of the Company has any pre-emptive rights.
MISCELLANEOUS
The presently outstanding shares of Common Stock of the Company are fully
paid and nonassessable.
The Common Stock of the Company is listed on the New York Stock Exchange
and the Pacific Exchange.
The New York Transfer Agent and Registrar for the Common Stock is The Bank
of New York, 101 Barclay Street, 11/th/ Floor, New York, New York 10286.
VALIDITY OF COMMON STOCK
The validity of the Common Stock issued by the Company under the Plan has
been passed upon for the Company by Paine, Hamblen, Coffin, Brooke & Miller LLP,
Spokane, Washington, counsel for the Company. Paine, Hamblen, Coffin, Brooke &
Miller is not aware of any court decision applying Washington law that addresses
plans similar to the Rights Agreement. However, such counsel have concluded that
a court applying such law, in the context of the authorization and issuance of
shareholders rights similar to the Rights, after giving effect to reported court
decisions concerning the "business judgment rule" under Washington State law,
would most likely look to and apply Delaware corporate law. Accordingly, the
opinion of such counsel, insofar as the Rights are concerned, is based upon such
conclusion.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Seventh of the Articles provides, in part, as follows:
"The Corporation shall, to the full extent
permitted by applicable law, as from time to time in effect,
indemnify any person made a party to, or otherwise involved
in, any proceeding by reason of the fact that he or she is
or was a director
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of the Corporation against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by him
or her in connection with any such proceeding. The
Corporation shall pay any reasonable expenses incurred by a
director in connection with any such proceeding in advance
of the final determination thereof upon receipt from such
director of such undertakings for repayment as may be
required by applicable law and a written affirmation by such
director that he or she has met the standard of conduct
necessary for indemnification, but without any prior
determination which would otherwise be required by
Washington law, that such standard of conduct has been met.
The Corporation may enter into agreements with each director
obligating the Corporation to make such indemnification and
advances of expenses as are contemplated herein.
Notwithstanding the foregoing, the Corporation shall not
make any indemnification or advance which is prohibited by
applicable law. The rights to indemnity and advancement of
expenses granted herein shall continue as to any person who
has ceased to be a director and shall inure to the benefit
of the heirs, executors and administrators of such a
person."
The Company has entered into indemnification agreements with each director
as contemplated in Article Seventh of the Articles.
Reference is made to Washington Business Corporation Act 23B.08.510, which
sets forth the extent to which indemnification is permitted under the laws of
the State of Washington.
Article IX of the Company's Bylaws contains a similar provision to that
contained in the Articles and, in addition, provides, in part, as follows:
"Section 2. LIABILITY INSURANCE. The Corporation
shall have the power to purchase and maintain insurance on
behalf of any person who is, or was a director, officer,
employee, or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust, other enterprise or employee benefit plan
against any liability asserted against him and incurred by
him in any such capacity or arising out of his status as
such, whether or not the Corporation would have the power to
indemnify him against such liability under the laws of the
State of Washington."
Insurance is maintained on a regular basis (and not specifically in
connection with this offering) against liabilities arising on the part of
directors and officers out of their performance in such capacities or arising on
the part of the Company out of its foregoing indemnification provisions, subject
to certain exclusions and to the policy limits.
Item 8. EXHIBITS
Exhibit
Number Description
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5.1 Opinion of Perkins Coie LLP regarding legality of the Common Stock
being registered
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Perkins Coie LLP (included in opinion filed as Exhibit
5.1)
24.1 Power of Attorney (see signature page)
99.1 2000 Non-Officer Employee Long-Term Incentive Plan
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Item 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in this Registration
Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if
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the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefits plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that, in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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POWER OF ATTORNEY
The Registrant hereby appoints each Agent for Service named in this
Registration Statement as its attorney-in-fact to sign in their name and behalf,
and to file with the Commission any and all amendments, including post-effective
amendments, to this Registration Statement, and each director and/or officer of
the Registrant whose signature appears below hereby appoints each such Agent for
Service as his/her attorney-in-fact with like authority to sign in his/her name
and behalf, in any and all capacities stated below, and to file with the
Commission any and all such amendments.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Spokane, State of Washington, on October 2,
2000.
AVISTA CORPORATION
By: /s/ T.M. Matthews
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T.M. Matthews
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated below on the dates indicated.
Signature Date
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/s/ T.M. Matthews October 2, 2000
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T.M. Matthews
Chairman of the Board, President
and Chief Executive Officer
/s/ J.E. Eliassen October 2, 2000
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J.E. Eliassen
Senior Vice President
and Chief Financial Officer
/s/ Kristianne Blake October 2, 2000
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Kristianne Blake
Director
/s/ David A. Clack October 2, 2000
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David A. Clack
Director
/s/ Sarah M.R. Jewell October 2, 2000
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Sarah M.R. Jewell
Director
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/s/ John F. Kelly October 2, 2000
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John F. Kelly
Director
/s/ Jessie J. Knight, Jr. October 2, 2000
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Jessie J. Knight, Jr.
Director
/s/ Eugene W. Meyer October 2, 2000
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Eugene W. Meyer
Director
/s/ Bobby Schmidt October 2, 2000
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Bobby Schmidt
Director
/s/ Larry A. Stanley October 2, 2000
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Larry A. Stanley
Director
/s/ R. John Taylor October 2, 2000
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R. John Taylor
Director
/s/ Daniel J. Zaloudek October 2, 2000
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Daniel J. Zaloudek
Director
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INDEX TO EXHIBITS
Exhibit
Number Description
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5.1 Opinion of Perkins Coie LLP regarding legality of the Common Stock
being registered
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Perkins Coie LLP (included in opinion filed as Exhibit
5.1)
24.1 Power of Attorney (see signature page)
99.1 2000 Non-Officer Employee Long-Term Incentive Plan
