AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 31, 2000
REGISTRATION NO. ____________
================================================================================
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)
WASHINGTON 91-0462470
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1411 EAST MISSION AVENUE
SPOKANE, WASHINGTON 99202
(Address, including zip code of
registrant's principal executive offices)
THE INVESTMENT AND EMPLOYEE
STOCK OWNERSHIP PLAN OF
AVISTA CORPORATION
(Full title of the plan)
J.E. ELIASSEN, SENIOR VICE PRESIDENT AND J. ANTHONY TERRELL, ESQ.
CHIEF FINANCIAL OFFICER THELEN REID & PRIEST LLP
AVISTA CORPORATION 40 WEST 57TH STREET
1411 EAST MISSION AVENUE NEW YORK, NEW YORK 10019
SPOKANE, WASHINGTON 99202 (212) 603-2000
(509) 495-0500
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================== ==================== =================== =================== =====================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT (1) PRICE (1) REGISTRATION FEE (3)
<S> <C> <C> <C> <C>
Common stock (no par value)... 1,500,000 shares $35.88 $53,820,000 $14,208.48
Preferred Share Purchase
Rights........................ 1,500,000 Rights (2)
============================== ==================== =================== =================== =====================
</TABLE>
(1) Calculated in accordance with Rule 457(h) of the General Rules and
Regulations under the Securities Act of 1933, as amended.
(2) The Preferred Share Purchase Rights ("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.
(3) Since no separate consideration is paid for the Rights, the registration
fee for such securities is included in the fee for the Common Stock.
Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement also covers an indeterminate amount of interests to be offered and
sold pursuant to the employee benefit plan described herein.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1
Plan Information*
ITEM 2
Registrant Information and Employee Plan Annual Information*
- ------------------------
* The information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the Note to Part
I of Form S-8.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3 INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated by reference in the Registration Statement.
1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the respective dates of filing of such documents.
ITEM 4 DESCRIPTION OF SECURITIES
-------------------------
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
attaching to 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
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.
II-1
<PAGE>
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
("Rights Agreement"), between the Company and The Bank of New York, as Rights
Agent, filed with the Securities and Exchange Commission. The following
statements are qualified in their entirety 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 ("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 the 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.
"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.
11-2
<PAGE>
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 dividend 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 a 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.
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.
II-3
<PAGE>
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 stockholders.
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 and, upon the sales as herein described, the shares of
Common Stock will continue to be 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, 11th 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 and 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, are based upon such conclusion.
ITEM 5 INTERESTS OF NAMED EXPERTS AND COUNSELS
---------------------------------------
Not Applicable.
ITEM 6 INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
Article Seventh of the Company's Restated Articles of Incorporation
("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 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 or 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 agreement 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.
II-4
<PAGE>
Reference is made to Revised Code of Washington 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 an indemnification provision
similar 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 7 EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not applicable.
ITEM 8 EXHIBITS
--------
Reference is made to the Exhibit Index on page II-9 hereof.
The undersigned Registrant hereby undertakes to submit the Plan and any
amendment thereto to the Internal Revenue Service (the "IRS") in a timely manner
and will make all changes required by the IRS in order to qualify the Plan under
Section 401 of the Internal Revenue Code.
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;
ii) To reflect in the Prospectus any facts or events arising after
the effective date of the 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 the Registration Statement;
iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (A)(l)(i) and (A)(l)(ii) above, do
-------- -------
not apply if the Registration Statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in the periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
---- ----
II-5
<PAGE>
(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 of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
the 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
of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as
expressed in the 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 Act and will be governed by the final
adjudication of such issue.
II-6
<PAGE>
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 attorney-in-fact with like authority to sign in his name and
behalf, in any and all capacities stated below, and to tile 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 March 31, 2000.
AVISTA CORPORATION
By: /s/ T.M. Matthews
------------------------------------
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 below by the following persons in the
capacities and on the dates indicated.
SIGNATURE DATE
/s/ T.M. Matthews March 31, 2000
- -----------------------------------------------------
T.M. Matthews
Chairman of the Board, President, Chief Executive Officer
and Director
/s/ J.E. Eliassen March 31, 2000
- -----------------------------------------------------
J.E. Eliassen
Senior Vice President and Chief Financial Officer
- -----------------------------------------------------
Sarah M.R. Jewell
Director
/s/ Jesse J. Knight, Jr. March 31, 2000
- -----------------------------------------------------
Jesse J. Knight, Jr.
Director
/s/ Eugene W. Meyer March 31, 2000
- -----------------------------------------------------
Eugene W. Meyer
Director
- -----------------------------------------------------
Bobby Schmidt
Director
/s/ R. John Taylor March 31, 2000
- -----------------------------------------------------
R. John Taylor
Director
- -----------------------------------------------------
David A. Clack
Director
/s/ Larry A. Stanley March 31, 2000
- -----------------------------------------------------
Larry A. Stanley
Director
/s/ John F. Kelly March 31, 2000
- -----------------------------------------------------
John F. Kelly
Director
- -----------------------------------------------------
Daniel J. Zaloudek
Director
II-7
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933, the Vice
President - Human Resources & Support Services, responsible for administration
of The Investment and Employee Stock Ownership Plan of Avista Corporation 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 March 31, 2000
THE INVESTMENT AND EMPLOYEE STOCK
OWNERSHIP PLAN OF AVISTA CORPORATION
By: /s/ JoAnn G. Matthiesen
-------------------------------------
Name: JoAnn G. Matthiesen
Title: Vice President - Human Resources
& Support Services
II-8
<PAGE>
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement
of Avista Corporation on Form S-8 of our report dated February 4, 2000 (February
16, 2000, as to Note 15), appearing in the Annual Report on Form 10-K of Avista
Corporation for the year ended December 31, 1999.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Seattle, Washington
March 31, 2000
II-9
<PAGE>
EXHIBIT INDEX
Exhibit Description
- ------- -----------
4(a) Restated Articles of Incorporation Avista Corporation, as
restated February 25, 1999 (filed with the Commission on
March 19, 1999 as Exhibit 3(a) to Registrant's Annual Report
on Form 10-K for the Year Ended December 31, 1998 (File No.
001-03701), and incorporated herein by reference thereto).
4(b) Bylaws of Avista Corporation, as amended May 13, 1999 (filed
with the Commission on August 13, 1999 as Exhibit 4(a) to
Registrant's Quarterly Report on Form 10-Q for the Quarterly
Period ended June 30, 1999 (File No. 001-03701), and
incorporated herein by reference thereto).
4(c) Rights Agreement, dated as of November 12, 1999, by and
between Registrant and The Bank of New York, as Rights Agent
(filed with the Commission on February 8, 2000 as Exhibit 1
to Registrant's Registration Statement on Form 8-A (File No.
001-03701), and incorporated herein by reference thereto).
5 Opinion of Paine, Hamblen, Coffin, Brooke & Miller LLP.
23(a) See Page II - 9 for consent of Deloitte & Touche
23(b) The consent of Paine, Hamblen, Coffin, Brooke & Miller LLP
is included in the opinion filed as Exhibit 5 hereto.
24 See Page II -7 for Power of Attorney.
II-10
Exhibit 5
[LETTERHEAD OF PAINE, HAMBLEN, COFFIN, BROOKE & MILLER LLP]
March 31, 2000
Avista Corporation
1411 East Mission Avenue
Spokane, WA 99202
Dear Sirs:
We are acting as counsel for Avista Corporation (the "Company") in
connection with the proposed offering by it of shares of its Common Stock,
without par value (the "Stock"), and the preferred share purchase rights
appurtenant thereto (the "Rights"), pursuant to the terms of the Company's
Investment and Employee Stock Ownership Plan for Employees of Avista Corporation
(the "Plan"), as contemplated by the registration statement on Form S-8 proposed
to be filed by the Company with the Securities and Exchange Commission on or
about the date hereof for the registration of the Stock and the Rights under the
Securities Act of 1933, as amended (the "Act"), said registration statement, as
it may be amended, being hereinafter called the "Registration Statement."
We are of the opinion that:
I. The Company is a corporation duly incorporated and validly
existing under the laws of the State of Washington.
II. The Company's Board of Directors has taken such actions as
may be necessary to authorize the offer and sale of the Stock on the
terms set forth in or contemplated by the Plan and to authorize such
other action as may be necessary in connection with the consummation
of the offer and sale of the Stock.
We are further of the opinion that, subject to the qualifications
hereinafter expressed:
III. With respect to authorized but unissued shares of Stock to
be issued and sold pursuant to the Plan, when
(a) The Washington Utilities and Transportation Commission,
the California Public Utilities Commission, the Idaho Public
Utilities Commission and the Public Utility Commission of Oregon
shall have issued, pursuant to applications filed or to be filed
by the Company with said regulatory authorities, appropriate
orders authorizing the issuance and sale by the Company of
authorized but unissued shares of Stock pursuant to the terms of
the Plan, and
(b) such Stock shall have been issued, sold and delivered by
the Company pursuant to the Plan, all as contemplated by, and in
conformity with, the acts, proceedings and documents referred to
above,
<PAGE>
such Stock will have been validly issued and will be fully
paid and nonassessable and such Rights will have been validly
issued.
Section 23B.06.240 of the Washington Business Corporation Act permits
Washington corporations to enter into shareholder rights plans, such as the
Rights Agreement, and to issue rights thereunder, such as the Rights.
We note that we are not aware of any court decisions applying the law
of the State of Washington that address plans similar to the Rights Agreement,
and that, as a consequence, it is difficult to predict how a court applying such
law would rule with respect to the due authorization and valid issuance of the
Rights. We have concluded that a court applying the law of the State of
Washington, when presented with novel questions concerning matters such as the
authorization and issuance of the Rights, after giving effect to reported court
decisions concerning the "business judgment rule" under Washington law, most
likely would look to and apply the corporate law of the State of Delaware.
Accordingly, the opinions relating to the Rights expressed in the immediately
preceding paragraph are based upon such conclusion. We do not herein express any
opinion as to the enforceability of the Rights or the Rights Agreement under the
law of the State of Washington.
We are members of the bar of the State of Washington, California,
Idaho, Montana and Oregon and do not hold ourselves out as experts on the laws
of any other state.
We hereby authorize and consent to the use of this opinion as Exhibit
5 to the Registration Statement, and authorize and consent to the references to
our firm in the Registration Statement.
Very truly yours,
PAINE, HAMBLEN, COFFIN,
BROOKE & MILLER LLP
/s/Lawrence R. Small
Lawrence R. Small
2
