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As
filed with the Securities and Exchange Commission on February 7,
2006
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Registration
No. 333-126577
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SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
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POST-EFFECTIVE
AMENDMENT
NO. 1
TO
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
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91-0462470
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
Number)
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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
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(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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EXPLANATORY
NOTE
This
Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 of
Avista Corporation (File No. 333-126577), is being filed to include therein
Exhibit 5.1, the legal opinion of Heller Ehrman LLP.
Item
8. Exhibits.
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Exhibit
Number |
Description of Exhibits |
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3.1*
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-
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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.
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3.2*
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-
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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.
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4.1*
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-
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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.
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5.1**
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-
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Opinion
of Heller Ehrman LLP
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15**
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Letter
from Deloitte & Touche LLP regarding Unaudited Interim Financial
Information
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23.1**
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Consent
of Deloitte & Touche LLP
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23.2**
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Consent
of Heller Ehrman LLP (included in Exhibit 5.1)
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24.1*
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-
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Power
of Attorney
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* Previously filed.
**
Filed herewith.
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2
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 Post-Effective Amendment No. 1
to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Spokane and State of Washington on
this 7th
day of
February, 2006.
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AVISTA
CORPORATION
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By:
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/s/
Malyn K. Malquist
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Malyn
K. Malquist
Senior
Vice President, Chief Financial
Officer
& Treasurer
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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.
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Signature
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Title
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*
Gary G. Ely Chairman
of the Board
President
and Chief
Executive
Officer
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Principal
Executive Officer
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*
Malyn K. Malquist Senior
Vice President, Chief
Financial
Officer & Treasurer
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Principal
Financial Officer and Accounting Officer
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*
Erik J. Anderson |
Director
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*
Kristianne Blake |
Director
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*
David A. Clack |
Director
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*
Roy Lewis Eiguren |
Director
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*
Jack W. Gustavel |
Director
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*
John F. Kelly |
Director
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*
Jessie J. Knight, Jr. |
Director
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*
Michael L. Noël |
Director
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*
Lura J. Powell, Ph.D. |
Director
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*
R. John Taylor |
Director
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*By:
/s/ Malyn K. Malquist
Malyn
K. Malquist
Attorney-in-Fact
EXHIBIT
INDEX
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Number
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Description
of Exhibits
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5.1
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Opinion of Heller Ehrman LLP |
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15
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23.1
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23.2
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Consent
of Heller Ehrman LLP (included in Exhibit
5.1)
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II-1
Exhibits
5.1 & 23.2
Heller Ehrman LLP
February
7,
2006
1411
East
Mission Avenue
Spokane,
WA 99202
We
have
acted as counsel to Avista Corporation, a Washington corporation (the
“Company”),
in
connection with the filing of a Post-Effective Amendment No. 1 to the
Registration Statement on Form S-8 (File No. 333-126577) (as amended by the
Post-Effective Amendment No. 1, the “Registration
Statement”)
with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the “Securities
Act”),
relating to the registration of the issuance of up to 1,000,000 additional
shares of common stock, no par value (the “Securities”),
of
the Company pursuant to the Company’s Long-Term Incentive Plan, as amended (the
“Plan”).
The
Securities will be offered and issued together with the related preferred share
purchase rights (the “New Rights”) in accordance with that certain Rights
Agreement, dated as of November 15, 1999 (the “Rights Agreement”), between the
Company and The Bank of New York, as rights agent.
I.
We
have
assumed the authenticity of all records, documents and instruments submitted
to
us as originals, the genuineness of all signatures, the legal capacity of
natural persons and the conformity to the originals of all records, documents
and instruments submitted to us as copies. We have based our opinion upon
our review of the following records, documents, instruments and certificates
and
such additional certificates relating to factual matters as we have deemed
necessary or appropriate for our opinion:
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(a)
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the
Registration Statement;
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(b)
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the
Plan;
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(c)
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the
Rights
Agreement;
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(d)
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the
Restated
Articles of Incorporation, as amended, of the Company certified by
the
Washington Secretary of State as of January 24,
2006, and certified to us by an officer of the Company as being complete
and in full force and effect as of the date of this
opinion;
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Avista
Corporation
February
7, 2006
Page
2
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(e)
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the
Bylaws of the Company certified by an officer of the Company as
being
complete and in full force and effect as of the date of this
opinion;
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(f)
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a
Certificate of Existence/Authorization relating to the Company and
issued
by the Washington Secretary of State, dated January 24,
2006;
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(g)
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records
certified to us by an officer of the Company as constituting all
records
of proceedings and actions of the Company’s board of directors relating to
the transactions contemplated by the Registration
Statement;
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(h)
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Order
No. 01, effective December 28, 2005, in Docket No. UE-051895 of the
Washington Utilities and Transportation
Commission;
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(i)
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Order
No. 29947, having a service date of January 10, 2006, in Case No.
AVU-U-05-2 of the Idaho Public Utilities
Commission;
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(j)
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Order
No. 06-014, entered January 17, 2006, in Docket No. UF 4223 of the
Public
Utility Commission of Oregon, together with the staff report appended
thereto which constitutes a part of the
order;
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(k)
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Default
Order No. 4535, entered July 2, 1979, in Docket No. 6690 of the Public
Service Commission of the State of Montana1;
and
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(l)
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a
Certificate of an officer of the Company as to certain factual
matters.
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II.
We
have
also assumed the following, without making any inquiry into the reasonableness
or validity thereof:
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A.
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The
Securities and
the New Rights will
be duly executed, authenticated and delivered prior to issuance as
set
forth in the Registration Statement and in accordance with the proceedings
and actions of the Company’s board of directors relating to the
transactions contemplated by the Registration
Statement.
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1
We have
received and relied upon an officer’s certificate certifying that at no time
since the issuance of the MPSC’s order have the Company’s electric sales for
ultimate use by Montana customers exceeded $5,000,000 or 5% of the Company’s
revenue in any year.
Avista
Corporation
February
7, 2006
Page
3
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B.
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We
have assumed that the members of the Company’s board of directors and the
Company’s stockholders have each satisfied all applicable fiduciary
duties.
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III.
This
opinion is limited to (i) the federal laws of the United States of America,
(ii)
the laws of the State of Washington, and (iii) the statutes (and regulations
promulgated thereunder) of the States of
Idaho,
Montana and Oregon pertaining to the regulation of public utilities in
those
States. We disclaim any opinion as to the laws of any other jurisdiction.
We further disclaim any opinion as to any statute, rule, regulation, ordinance,
order or other promulgation of any regional or local governmental body
or as to
any related judicial or administrative opinion.
IV.
Based
upon
the foregoing and our examination of such questions of law as we have deemed
necessary or appropriate for our opinion, and subject to the assumptions,
limitations and qualifications expressed herein, it is our opinion that the
Securities, when issued and delivered against payment therefor in accordance
with the Plan and any related agreements, will be legally issued, fully paid
and
nonassessable,
and the
New Rights, when issued and delivered against payment for the Securities in
accordance with the Plan and any related agreements, will be legally
issued.
V.
We
hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement and to the references to this firm, as counsel, in the Registration
Statement. In giving this consent, we do not thereby admit that we are
within the category of persons whose consent is required under Section 7 of
the
Securities Act or the rules and regulations promulgated thereunder.
VI.
The
foregoing opinion is being delivered solely to you in connection with the filing
of the Registration Statement and is solely for your benefit and the benefit
of
the holders of the Securities. This opinion may not be relied on by you or
the
holders of the Securities for any other purpose or by any other person for
any
purpose without our written consent. We disclaim any obligation to advise you
of
any change of law that occurs, or any facts of which we become aware, after
the
date of this opinion.
/s/
Heller Ehrman LLP
EXHIBIT
15
February
7, 2006
Avista
Corporation
Spokane,
Washington
We
have
made a review, in accordance with the standards of the Public Company Accounting
Oversight Board (United States), of the unaudited interim financial information
of Avista Corporation and subsidiaries for the periods ended September 30,
2005
and 2004, as indicated in our report dated November 2, 2005. As indicated in
such report, because we did not perform an audit, we expressed no opinion on
that information.
We
are
aware that our report referred to above, which is included in your Quarterly
Report on Form 10-Q for the quarter ended September 30, 2005, is incorporated
by
reference in Avista Corporation’s Post-Effective Amendment No. 1 to Registration
Statement No. 333-126577 on Form S-8.
We
also
are aware that the aforementioned report, pursuant to Rule 436(c) under the
Securities Act of 1933, is not considered a part of the Registration Statement
prepared or certified by an accountant or a report prepared or certified by
an
accountant within the meaning of Sections 7 and 11 of that Act.
/s/ Deloitte & Touche LLP
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the use in this Post-Effective Amendment No. 1 to Registration
Statement No. 333-126577 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 to
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
February
7, 2006