AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 13, 2005
REGISTRATION NO. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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AVISTA CORPORATION
(Exact name of registrant as specified in its charter)
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Washington 91-0462470
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1411 East Mission Avenue
Spokane, Washington 99202-2600
(509) 489-0500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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AVISTA CORPORATION
LONG-TERM INCENTIVE PLAN
(Full title of the plan)
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M. K. MALQUIST
Senior Vice President, Chief
Executive
Officer and Treasurer
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)
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Copy to:
Benjamin I. Delancy
Thelen Reid & Priest LLP
701 Eighth Street, NW
Washington, D.C. 20001
(202) 508-4000
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CALCULATION OF REGISTRATION FEE
- --------------------------------- ------------------- --------------------- -------------------- ------------------
PROPOSED PROPOSED
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED (1) PRICE PER SHARE (3) OFFERING PRICE (3) REGISTRATION FEE
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Common stock, no par value. 1,000,000 $18.35 $18,350,000 $2,159.80
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Preferred Share Purchase Rights 1,000,000 (2) (2) (2) (2)
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, this registration
statement also covers such indeterminable number of additional securities
as may become deliverable as a result of stock splits, stock dividends or
similar transactions, in accordance with the provisions of the employee
benefit plan described herein.
(2) Since no separate consideration will be paid for the common stock purchase
rights, the registration fee for such securities is included in the fee for
the common stock. The value attributable to the common stock purchase
rights, if any, is reflected in the market price of the common stock.
(3) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h) under the Securities Act of 1933 on the basis of the average
of the high and low prices of the registrant's common stock on the New York
Stock Exchange composite tape on July 7, 2005.
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EXPLANATORY NOTE
This registration statement is being filed solely to register the issuance
of (i) up to 1,000,000 additional shares of common stock, no par value ("Common
Stock"), of Avista Corporation, a Washington corporation (the "Company" or
"Avista Corp."), pursuant to the Company's Long-Term Incentive Plan (the
"Plan"). The Company previously filed a registration statement on Form S-8 (File
No. 333-58197) on June 30, 1998, covering 2,500,000 shares of its Common Stock
initially authorized for issuance under the Plan. Pursuant to Section 5 of the
Plan, as of May 12, 2005, the number of shares that may by delivered pursuant to
awards granted under the Plan was increased by 1,000,000.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "SEC") are hereby incorporated by reference in this registration statement:
o Avista Corp.'s Annual Report on Form 10-K for the year ended December
31, 2004 filed March 11, 2005,
o Avista Corp.'s Quarterly Report on Form 10-Q for the quarter ended
March 31, 2005 filed May 6, 2005,
and
o Avista Corp.'s Current Reports on Form 8-K filed February 16, 2005,
March 25, 2005, April 4, 2005 (only with respect to the information
provided under Item 8.01) and May 18, 2005.
All other documents filed by Avista Corp. with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (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.
You may request any of these filings, at no cost, by contacting the Company
at the address or telephone number provided on the cover page of this
registration statement. Avista Corp. maintains an Internet site at
http://www.avistacorp.com which contains information concerning Avista Corp. and
its affiliates. Avista Corp. makes available free of charge, on or through its
Internet site, its annual, quarterly and current reports, and any amendments to
those reports, as soon as reasonably practicable after electronically filing
such reports with the SEC. The information contained at Avista Corp.'s Internet
site is not incorporated in this registration statement by references and you
should not consider it a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
GENERAL
The authorized capital stock of Avista Corp. consists of 10,000,000 shares
of Preferred Stock, cumulative, without nominal or par value, which is issuable
in series (the "Preferred Stock"), and 200,000,000 shares of Common Stock
without nominal or par value, together with attached preferred share purchase
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rights (the "Common Stock"). Following is a brief description of certain of the
rights and privileges of the Common Stock. The following description, which does
not purport to be complete, is qualified in its entirety by Avista Corp.'s
Restated Articles of Incorporation, as amended (the "Articles"), and its Bylaws,
as amended (the "Bylaws"), and to the laws of the State of Washington.
DIVIDEND RIGHTS
After full provision for all Preferred Stock dividends declared or in
arrears, the holders of Common Stock are entitled to receive such dividends as
may be lawfully declared from time to time by Avista Corp.'s Board of Directors.
Various financing arrangements, charter provisions and regulatory
requirements may impose certain restrictions on the payment of dividends.
VOTING RIGHTS
The holders of the Common Stock have sole voting power, except as indicated
below or as otherwise provided by law. Each holder of Common Stock is entitled
to one vote per share, except that, in the election of directors, each holder
has "cumulative" voting rights by which such holder is entitled to that number
of votes which is equal to the number of directors to be elected multiplied by
the number of shares held. These votes may all be cast for a single nominee for
director or may be distributed among any two or more nominees.
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, voting as one class, to elect a
majority of the Board of Directors, and the holders of the Common Stock, voting
as a single class, will be entitled to elect the remaining directors of Avista
Corp. 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 Bylaws provide for a Board of Directors divided
into three classes. Each director of a class will generally serve for a term of
three years, with only one class of directors being elected in each year. The
classification of the Board of Directors reduces the impact of cumulative voting
rights.
The Articles and Bylaws also generally 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 outstanding shares of Common Stock. The Articles and
Bylaws further require an affirmative vote of the holders of at least 80% of the
outstanding shares of 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.
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"FAIR PRICE" PROVISION
The Articles contain a "fair price" provision which requires the
affirmative vote of the holders of at least 80% of the outstanding shares of
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 Avista
Corp. 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
o such business combination shall have been approved by a majority of
the directors unaffiliated with the Interested Shareholder or
o 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 outstanding shares of Common Stock.
PREFERRED SHARE PURCHASE RIGHTS
General
The description and terms of the rights are set forth in the Rights
Agreement, dated as of November 15, 1999 (the "Rights Agreement") between Avista
Corp. and The Bank of New York, as Rights Agent, filed with the SEC. The
proceeding summary of the rights is qualified in its entirety by reference to
the Rights Agreement.
On November 12, 1999, the Avista Corp. Board of Directors authorized the
Rights Agreement to replace the then-existing rights plan, which expired on
February 16, 2000. Under the Rights Agreement, Avista Corp. 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 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
Preferred Stock at a purchase price of $70.00 (the "Purchase Price"). The Rights
are exercisable only if a person or group
o acquires beneficial ownership of 10% or more of the outstanding shares
of Common Stock, or
o 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 are evidenced by and trade with the shares of
Common Stock. The Rights will expire on March 31, 2009 unless Avista Corp. 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.
5
"Flip-in"
If any person or group acquires beneficial ownership of 10% or more of the
outstanding shares of Common Stock, each unexercised Right will entitle its
holder to purchase that number of shares of Common Stock or, at the option of
Avista Corp., 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 Avista Corp.
o consolidates or merges with or into, or
o sells 50% or more of its assets or earning power to,
any person or group, each unexercised 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, Avista Corp. 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
Avista Corp. 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
o in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Stock,
o 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
o 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. Avista
Corp. will not issue fractional shares of Preferred Stock other than in integral
multiples of one ten-thousandth of a share. Instead, Avista Corp. will make an
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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
Avista Corp. distributed one Right to its shareholders for each share of
Common Stock owned of record by them at the close of business on February 15,
2000. Until the earliest of
o such time as any person or group acquires beneficial ownership of 10%
or more of the outstanding shares of Common Stock,
o March 31, 2009, or
o the redemption of the Rights,
Avista Corp. has issued and will continue to 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. Avista Corp.
has initially authorized and reserved 600,000 shares of Preferred Stock for
issuance upon exercise of the Rights.
Amendment
Avista Corp. 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, Avista Corp. may amend the Rights Agreement
in any manner which will not adversely affect the holders of the Rights in any
material respect.
ANTI-TAKEOVER EFFECT
The Washington Business Corporation Act contains certain provisions,
including business combination provisions that would be applicable to, among
other things, certain mergers, share exchanges or sales of assets having an
aggregate market value equal to 5% or more of the consolidated assets of Avista
Corp. or a subsidiary and a shareholder that beneficially owns 10% or more of
the outstanding Common Stock of Avista Corp. We have no right to waive the
applicability of these provisions.
The provisions of the Articles and the Bylaws described above under
"Classified Board of Directors" and "`Fair Price' Provision" and the Rights
Agreement described above under "Preferred Share Purchase Rights," together with
certain provisions of the Washington Business Corporation Act, considered either
individually or in the aggregate, may have an "anti-takeover" effect. These
provisions could discourage a future takeover attempt which is not approved by
Avista Corp.'s Board of Directors but which individual shareholders might deem
to be in their best interests or in which shareholders would receive a premium
for their shares over current market prices. As a result, shareholders who might
desire to participate in such a transaction might not have an opportunity to do
so.
The Rights described above under "Preferred Share Purchase Rights" would
cause substantial dilution to a person or group that attempts to acquire Avista
Corp. on terms not approved by the Board of Directors, except pursuant to an
offer conditioned on a substantial number of Rights being acquired or redeemed.
However, the Rights should not interfere with any merger or other business
combination approved by the Board of Directors 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 Rights Agreement may be
amended, as described above.
7
The provisions described above under "Classified Board of Directors" could
also cause the removal of the incumbent Board of Directors or management to
require more time or render such removal more difficult, procedurally or
otherwise.
LIQUIDATION RIGHTS
In the event of any liquidation of Avista Corp., after satisfaction of the
preferential liquidation rights of the Preferred Stock, the holders of Common
Stock would be entitled to share ratably in all assets of Avista Corp. available
for distribution to shareholders.
PRE-EMPTIVE RIGHTS
No holder of any stock of Avista Corp. has any pre-emptive rights.
MISCELLANEOUS
The presently outstanding shares of Common Stock are fully paid and
non-assessable.
The Common Stock 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.
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 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.
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:
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"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."
Revised Code of Washington 23B.08.510 sets forth the extent to which
indemnification is permitted under the laws of the State of Washington.
ITEM 8. EXHIBITS.
Exhibit
Number Description of Exhibits
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3.1* - Restated Articles of Incorporation of Avista Corporation as amended
November 1, 1999, filed as Exhibit 3(a) to the Annual Report on Form
10-K for the period ended December 31, 2001, which exhibit is
incorporated herein by reference.
3.2* - Bylaws of Avista Corporation, as amended August 13, 2004, filed as
Exhibit 3(b) to the Current Report on Form 8-K dated as of August 13,
2004, which exhibit is incorporated herein by reference.
4 - Avista Corporation Long-Term Incentive Plan, as amended, filed as
Appendix A to the Definitive Proxy Statement on Schedule 14A of
Avista Corporation filed on March 31, 2005, which appendix is
incorporated herein by reference.
23 - Consent of Deloitte & Touche LLP
24 - Power of Attorney (included on the signature page hereto)
_________________________________
*Incorporated herein by reference as indicated.
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; and
(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;
9
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the SEC 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.
(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 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 provisions
described under Item 6 above, or otherwise, the registrant has been
advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act of 1933 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 of
1933, 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 Securities and Exchange 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
file with the Securities and Exchange Commission, any and all such amendments.
SIGNATURES
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 and State of Washington on the 13th day of
July, 2005
AVISTA CORPORATION
By: /s/ Malyn K. Malquist
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Malyn K. Malquist
Senior Vice President, Chief
Financial Officer & Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Gary G. Ely Principal Executive Officer July 13, 2005
- -----------------------------
Gary G. Ely
Chairman of the Board
President and Chief
Executive Officer
/s/ Malyn K. Malquist Principal Financial Officer July 13, 2005
- ----------------------------- and Accounting Officer
Malyn K. Malquist
Senior Vice President, Chief
Financial Officer & Treasurer
/s/ Erik J. Anderson Director July 13, 2005
- -----------------------------
Erik J. Anderson
/s/ Kristianne Blake Director July 13, 2005
- ---------------------------
Kristianne Blake
/s/ David A. Clack Director July 13, 2005
- ---------------------------
David A. Clack
/s/ Roy Lewis Eiguren Director July 13, 2005
- ---------------------------
Roy Lewis Eiguren
/s/ Jack W. Gustavel Director July 13, 2005
- ---------------------------
Jack W. Gustavel
/s/ John F. Kelly Director July 13, 2005
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John F. Kelly
/s/ Jessie J. Knight, Jr. Director July 13, 2005
- ---------------------------
Jessie J. Knight, Jr.
/s/ Michael L. Noel Director July 13, 2005
- ---------------------------
Michael L. Noel
/s/ Lura J. Powell, Ph.D. Director July 13, 2005
- ---------------------------
Lura J. Powell, Ph.D.
/s/ R. John Taylor Director July 13, 2005
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R. John Taylor
EXHIBIT INDEX
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Exhibit
Number Description of Exhibits
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23 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on the signature page hereto)
II-1
EXHIBIT 23 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated March 9, 2005, relating to the consolidated financial statements of Avista Corporation and subsidiaries (which report expresses an unqualified opinion and includes an explanatory paragraph for certain changes in accounting and presentation resulting from the impact of recently adopted accounting standards), and management's report on the effectiveness of internal control over financial reporting appearing in the Annual Report on Form 10-K of Avista Corporation for the year ended December 31, 2004. /s/ Deloitte & Touche LLP DELOITTE & TOUCHE LLP Seattle, Washington July 13, 2005