As filed with the Securities and Exchange Commission on October 1, 1998.
Registration No. 33-56071
SECURITIES AND EXCHANGE COMMISSION
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
IDACORP, INC.
(Exact name of registrant as specified in its charter)
Idaho 82-0505802
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
|
Joseph W. Marshall J. LaMont Keen
Chairman of the Board and Vice President, Chief Financial
Chief Executive Officer Officer and Treasurer
IDACORP, Inc. IDACORP, Inc.
1221 West Idaho Street 1221 West Idaho Street
Boise, Idaho 83702-5627 Boise, Idaho 83702-5627
208-388-2200 208-388-2200
Robert W. Stahman, Esq. Elizabeth W. Powers, Esq.
Vice President, General Counsel LeBoeuf, Lamb, Greene & MacRae, L.L.P.
and Secretary 125 West 55th Street
IDACORP, Inc. New York, New York 10019
1221 West Idaho Street 212-424-8000
Boise, Idaho 83702-5627
208-388-2200
|
(Names, addresses and telephone numbers, including area codes,
of agents for service)
Pursuant to Rule 414(d) under the Securities Act of 1933, IDACORP, as successor to Idaho Power Company, hereby adopts as its own Idaho Power Company's registration statement on Form S-8 (File No. 33-56071) and any amendments thereto, for all purposes of the Securities Act of 1933 and the Securities Exchange Act of 1934, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference:
1. Idaho Power Company's Annual Report on Form 10-K for the year ended December 31, 1997.
2. Idaho Power Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998 and June 30, 1998.
3. Idaho Power Company's Current Report on Form 8-K, dated October 1, 1998.
4. The description of IDACORP's Common Stock contained in the Proxy Statement and Prospectus and Registration Statement on Form S-4, File No. 333-48031.
5. The description of the Preferred Share Purchase Rights contained in IDACORP's Registration Statement on Form 8-A, dated September 15, 1998.
6. IDACORP's Current Reports on Form 8-K, dated September 15, 1998 and October 1, 1998.
7. The Idaho Power Company Employee Savings Plan Annual Report on Form 11-K for the year ended December 31, 1997.
All documents filed by IDACORP and the Plan under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, before IDACORP files a post-effective amendment that indicates all securities offered have been sold or that deregisters all securities that having not been sold, shall be incorporated by reference and will be a part of this filing from the date that document was filed.
Item 5. Interests of Named Experts and Counsel.
Robert W. Stahman, Esq., Vice President, General Counsel and Secretary of the Company, and LeBoeuf, Lamb, Greene & MacRae, L.L.P. have given their opinions on the legality of the Common Stock and the Preferred Share Purchase Rights offered pursuant to this registration statement. LeBoeuf, Lamb, Greene & MacRae, L.L.P. relied upon the opinion of Mr. Stahman as to matters of Idaho law.
As of October 1, 1998, Mr. Stahman owned 17,457 shares of IDACORP Common Stock.
Item 6. Indemnification of Officers and Directors.
Sections 30-1-850 et seq. of the Idaho Business Corporation Act (the "Act") provide for indemnification of the Company's directors and officers in a variety of circumstances.
Article VIII of the Company's Restated Articles of Incorporation provides that the Company shall indemnify its directors and officers against liability and expenses and shall advance expenses to its directors and officers in connection with any proceeding to the fullest extent permitted by the Act as now in effect or as it may be amended or substituted from time to time. Article VI of the Amended Bylaws of the Company provides that the Company shall have the power to purchase insurance on behalf of any director, officer, employee or agent against liability and expenses in connection with any proceeding, to the extent permitted under applicable law. Article VI further provides that the Company may enter into indemnification agreements with any director, officer, employee or agent to the extent permitted under any applicable law.
The Company has liability insurance protecting its directors and officers against liability by reason of their being or having been directors or officers. In addition, the Company intends to enter into indemnification agreements with its directors and officers to provide for indemnification to the maximum extent permitted by law.
Item 8. Exhibits.
Exhibit File Number As Exhibit
------- ----------- ----------
*2 333-48031 2 -Agreement and Plan of Exchange,
dated as of February 2, 1998.
*3(a) 333-48031 3(a) -Restated Articles of
Incorporation of IDACORP, Inc.
*3(b) 333-00139 3(b) -Articles of Amendment to
Restated Articles of
Incorporation creating A Series
Preferred Stock, without par
value, as filed with the
Secretary of State of Idaho on
September 17, 1998.
*3(c) 333-48031 3(c) -Amended Bylaws of IDACORP,
Inc., as of September 10, 1998.
3(d) -Articles of Share Exchange, as
filed with the Secretary of
State of Idaho on September 29,
1998.
*4 Form 8-K 4 -Rights Agreement, dated as of
dated September 10, 1998, between
September 15, IDACORP, Inc. and The Bank of
1998 New York, as Rights Agent.
5(a) -Opinion and consent of Robert
W. Stahman, Esq.
5(b) -Opinion and consent of LeBoeuf,
Lamb, Greene & MacRae, L.L.P.
15 -Letter from Deloitte & Touche
LLP regarding unaudited interim
financial information.
23 -Consent of Deloitte & Touche
LLP.
24 -Power of Attorney (included on
the signature page hereof).
------------------------------------
|
* Previously filed and incorporated herein by reference.
The Company undertakes that it will submit or has submitted the Plan and any amendments thereto to the Internal Revenue Service (the "IRS") in a timely manner and has made or 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.
The Company 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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 (1)(i) and (1)(ii) do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3 and 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 Securities and Exchange Commission by the Company 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 that remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and 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.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the provisions described under Item 6 above, or otherwise, the Company 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 Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
POWER OF ATTORNEY
Each director and/or officer of the issuer whose signature appears below hereby authorizes any agent for service named in this Post-Effective Amendment to the Registration Statement to execute in the name of each such person, and to file with the Securities and Exchange Commission, any and all amendments, including post-effective amendments, to the Registration Statement, and appoints any such agent for service as attorney-in-fact to sign in his behalf individually and in each capacity stated below and file any such amendments to the Registration Statement, and the issuer and the Idaho Power Company Employee Savings Plan hereby confer like authority to sign and file on their behalf.
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 Post-Effective Amendment to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Boise and State of Idaho, on the 30th day of September, 1998.
IDACORP, Inc.
By /s/ Joseph W. Marshall --------------------------- Joseph W. Marshall Chairman of the Board and Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment to the Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Joseph W. Marshall Chairman of the September 30, 1998
---------------------- Board and Chief
(Joseph W. Marshall) Executive Officer
/s/ Jan B. Packwood President, Chief September 30, 1998
---------------------- Operating Officer
(Jan B. Packwood) and Director
/s/ J. LaMont Keen Vice President, September 30, 1998
---------------------- Chief Financial
(J. LaMont Keen) Officer and Treasurer
(Principal Financial and
Accounting Officer)
Director
----------------------
(Robert D. Bolinder)
/s/ Roger L. Breezley Director September 30, 1998
----------------------
(Roger L. Breezley)
Director
----------------------
(John B. Carley)
/s/ Peter T. Johnson Director September 30, 1998
----------------------
(Peter T. Johnson)
Director
----------------------
(Jack K. Lemley)
/s/ Evelyn Loveless Director September 30, 1998
----------------------
(Evelyn Loveless)
/s/ Jon H. Miller Director September 30, 1998
----------------------
(Jon H. Miller)
/s/ Peter S. O'Neill Director September 30, 1998
----------------------
(Peter S. O'Neill)
/s/ Gene C. Rose Director September 30, 1998
----------------------
(Gene C. Rose)
/s/ Phil Soulen Director September 30, 1998
----------------------
(Phil Soulen)
|
The Plan. Pursuant to the requirement of the Securities Act of 1933, Idaho
Power Company as the Plan Administrator of the Idaho Power Company Employee
Savings Plan discharges its responsibilities through the actions of its
Executive Officers (1) the Chairman of the Board and Chief Executive Officer and
(2) the President and Chief Operating Officer, and the Chairman of the Board and
Chief Executive Officer has signed this Post- Effective Amendment to the
Registration Statement on behalf of the Company as Plan Administrator,
thereunder duly authorized, in the City of Boise and State of Idaho, on the 30th
day of September, 1998.
IDAHO POWER COMPANY
EMPLOYEE SAVINGS PLAN
By /s/ Joseph W. Marshall
---------------------------------
Executive Officer - Chairman of
the Board and Chief Executive
Officer
|
EXHIBIT INDEX
Exhibit File Number As Exhibit Page
------- ----------- ---------- ----
*2 333-48031 2 -Agreement and Plan of Exchange,
dated as of February 2, 1998.
*3(a) 333-48031 3(a) -Restated Articles of
Incorporation of IDACORP, Inc.
*3(b) 333-00139 3(b) -Articles of Amendment to
Restated Articles of
Incorporation creating A Series
Preferred Stock, without par
value, as filed with the
Secretary of State of Idaho on
September 17, 1998.
*3(c) 333-48031 3(c) -Amended Bylaws of IDACORP,
Inc., as of September 10, 1998.
3(d) -Articles of Share Exchange, as
filed with the Secretary of
State of Idaho on September 29,
1998.
*4 Form 8-K 4 -Rights Agreement, dated as of
dated September 10, 1998, between
September 15, IDACORP, Inc. and The Bank of
1998 New York, as Rights Agent.
5(a) -Opinion and consent of Robert
W. Stahman, Esq.
5(b) -Opinion and consent of LeBoeuf,
Lamb, Greene & MacRae, L.L.P.
15 -Letter from Deloitte & Touche
LLP regarding unaudited interim
financial information.
23 -Consent of Deloitte & Touche
LLP.
24 -Power of Attorney (included on
the signature page hereof).
------------------------------------
|
* Previously filed and incorporated herein by reference.
IDACORP, Inc.
Articles of Share Exchange
1. Attached hereto as Exhibit A and made a part hereof is the Agreement and
Plan of Exchange ("Plan of Exchange"), dated as of February 2, 1998, between
Idaho Power Company (Idaho Power), an Idaho corporation, and IDACORP, Inc., an
Idaho corporation. The Plan of Exchange sets forth the information required by
Section 30-1-1102.
2. The Board of Directors of Idaho Power submitted the Plan of Exchange to those shareholders entitled to vote on the matter at its annual shareholders meeting on May 6, 1998. Idaho Power duly notified each shareholder, whether or not entitled to vote, of the annual shareholders meeting and provided each shareholder with notice of the Plan of Exchange. The shareholders voted in favor of the Plan of Exchange, as set forth below.
Number of Number of
Name of Designation Outstanding Votes Entitled
Corporation of Class Shares to be Cast
----------- ----------- ----------- --------------
Idaho Power Company Common Stock 37,612,351 37,612,351
4% Preferred Stock 166,407 3,328,140
7.68% Preferred Stock 150,000 150,000
Number Number Voted Broker
Voted For Against Number Abstain Non-Votes
--------- ------------ -------------- ---------
22,486,080 403,789 376,847 5,749,326
1,674,620 84,660 62,600 302,820
91,132 668 1,039 40,175
---------- ---------- ---------- ---------
24,251,832 489,117 440,486 6,092,321
|
3. These Articles of Share Exchange shall become effective at 12:01 a.m. on October 1, 1998.
IDACORP, Inc.
By: /s/ Robert W. Stahman
----------------------------
Robert W. Stahman
Vice President, General
Counsel and Secretary
Date: September 29, 1998
|
Exhibit A
AGREEMENT AND PLAN OF EXCHANGE
This AGREEMENT AND PLAN OF EXCHANGE (this "Agreement"), dated as of February 2, 1998, is between IDAHO POWER COMPANY, an Idaho corporation (the "Company") , the company whose shares will be acquired pursuant to the Exchange described herein, and IDAHO POWER HOLDING COMPANY, an Idaho corporation ("IPHC"), the acquiring company. The Company and IPHC are hereinafter referred to, collectively, as the "Companies".
WITNESSETH:
WHEREAS, the authorized capital stock of the Company consists of (a) 50,000,000 shares of Common Stock, $2.50 par value ("Company Common Stock"), of which 37,612,351 shares are issued and outstanding, (b) 215,000 shares of 4% Preferred Stock, $100 par value, of which 166,972 shares are issued and outstanding, (c) 150,000 shares of Serial Preferred Stock, $100 par value, of which 150,000 shares are issued and outstanding and (d) 3,000,000 shares of Serial Preferred Stock, without par value, of which 500,500 shares are issued and outstanding; the number of shares of Company Common Stock being subject to increase to the extent that shares reserved for issuance are issued prior to the Effective Time, as hereinafter defined.
WHEREAS, IPHC is a wholly-owned subsidiary of the Company with authorized capital stock consisting of (a) 120,000,000 shares of Common Stock, without par value ("IPHC Common Stock"), of which 100 shares are issued and outstanding and owned of record by the Company and (b) 20,000,000 shares of Preferred Stock, without par value ("IPHC Preferred Stock"), none of which shares are issued and outstanding;
WHEREAS, the Boards of Directors of the respective Companies deem it desirable and in the best interests of the Companies and the shareholders of the Company that each share of Company Common Stock be exchanged for a share of IPHC Common Stock with the result that IPHC becomes the owner of all outstanding Company Common Stock and that each holder of Company Common Stock becomes the owner of an equal number of shares of IPHC Common Stock, all on the terms and conditions hereinafter set forth; and
WHEREAS, the Boards of Directors of the Companies have each approved and adopted this Agreement and the Board of Directors of the Company has recommended that its shareholders approve this Agreement pursuant to the Idaho Business Corporation Act (the "Act");
NOW, THEREFORE, in consideration of the premises, and of the agreements, covenants and conditions hereafter contained, the parties hereto agree with respect to the exchange provided for herein (the "Exchange") that at the Effective Time (as hereinafter defined) each share of Company Common Stock issued and outstanding immediately prior to the Effective Time will be exchanged for one share of IPHC Common Stock, and that the terms and conditions of the Exchange and the method of carrying the same into effect shall be as follows:
ARTICLE I
This Agreement shall be submitted to the shareholders of the Company entitled to vote with respect thereto for approval as provided by the Act.
ARTICLE II
Subject to the satisfaction of the terms and conditions set forth in this Agreement and to the provisions of Article VI, IPHC agrees to file with the Secretary of State of the State of Idaho (the "Secretary of State") Articles of Share Exchange (the "Articles") with respect to the Exchange, and the Exchange shall take effect upon the effective date as specified in the Articles (the "Effective Time")
ARTICLE III
A. At the Effective Time:
(1) each share of Company Common Stock issued and outstanding immediately prior to the Effective Time shall be automatically exchanged for one share of IPHC Common Stock, which shares shall thereupon be fully paid and non-assessable;
(2) PHC shall acquire and become the owner and holder of each issued and outstanding share of Company Common Stock so exchanged;
(3) each share of IPHC Common Stock issued and outstanding immediately prior to the Effective Time shall be canceled and shall thereupon constitute an authorized and unissued share of IPHC Common Stock;
(4) each share of Company Common Stock held under the Dividend Reinvestment and Stock Purchase Plan, the Employee Savings Plan and the 1994 Restricted Stock Plan (including fractional and uncertificated shares) immediately prior to the Effective Time shall be automatically exchanged for a like number of shares (including fractional and uncertificated shares) of IPHC Common Stock, which shares shall be held under the Dividend Reinvestment and Stock Purchase Plan, the Employee Savings Plan and the 1994 Restricted Stock Plan, as the case may be; and
(5) the former owners of Company Common Stock shall be entitled only to receive shares of IPHC Common Stock as provided herein.
B. Subject to dissenters' rights as set forth in Part 13 of the Act for the 4% Preferred Stock, $100 par value and the Serial Preferred Stock, $100 par value, shares of the Company's 4% Preferred Stock, $100 par value, Serial Preferred Stock, $100 par value, and Serial Preferred Stock, without par value, shall not be exchanged or otherwise affected in connection with the Exchange and, to the extent issued and outstanding immediately prior to the Effective Time, shall continue to be issued and outstanding following the Exchange as shares of the Company of the applicable series designation.
C. As of the Effective Time, IPHC shall succeed to the Dividend Reinvestment and Stock Purchase Plan as in effect immediately prior to the Effective Time, and the Dividend Reinvestment and Stock Purchase Plan shall be appropriately amended to provide for the issuance and delivery of IPHC Common Stock on and after the Effective Time.
D. As of the Effective Time, the Employee Savings Plan and the 1994 Restricted Stock Plan shall be appropriately amended to provide for the issuance and delivery of IPHC Common Stock on and after the Effective Time.
ARTICLE IV
The filing of the Articles with the Secretary of State and the consummation of the Exchange are subject to the satisfaction of the following conditions precedent:
(1) the approval by the shareholders of the Company, to the extent required by the Act, of this Agreement;
(2) the approval for listing, upon official notice of issuance, by the New York Stock Exchange, of IPHC Common Stock to be issued and reserved for issuance pursuant to the Exchange;
(3) the receipt of such orders, authorizations, approvals or waivers from the Idaho Public Utilities Commission and all other regulatory bodies, boards or agencies as are required in connection with the Exchange, which orders, authorizations, approvals or waivers remain in full force and effect and do not include, in the sole judgment of the Board of Directors of the Company, unacceptable conditions; and
(4) the receipt by the Company of a tax opinion of LeBoeuf, Lamb, Greene & MacRae L.L.P. satisfactory to the Board of Directors of the Company to the effect that (a) common shareholders of the Company (i) will recognize no gain or loss in connection with the Exchange, (ii) will have the same basis in their IPHC Common Stock after the Exchange as they had in their Company Common Stock before the Exchange and (iii) will be entitled to include any period that they held Company Common Stock before the Exchange when determining any holding period with respect to IPHC Common Stock received in the Exchange and (b) IPHC will recognize no gain or loss upon its receipt of Company Common Stock in the Exchange.
ARTICLE V
Following the Effective Time, each holder of an outstanding certificate or certificates theretofore representing shares of Company Common Stock may, but shall not be required to, surrender the same to IPHC for cancellation and reissuance of a new certificate or certificates in such holder's name or for cancellation and transfer, and each holder or transferee will be entitled to receive a certificate or certificates representing the same number of shares of IPHC Common Stock as the shares of Company Common Stock previously represented by the certificate or certificates surrendered. Until so surrendered or presented for transfer, each outstanding certificate which, immediately prior to the Effective Time, represented Company Common Stock shall be deemed and treated for all corporate purposes to represent the ownership of the same number of shares of IPHC Common Stock as though such surrender or transfer and exchange had taken place. The holders of Company Common Stock at the Effective Time shall have no right to have their shares of Company Common Stock transferred on the stock transfer books of the Company, and such stock transfer books shall be deemed to be closed for this purpose at the Effective Time.
ARTICLE VI
This Agreement may be amended, modified or supplemented, or compliance with any provision or condition hereof may be waived, at any time, by the mutual consent of the Boards of Directors of the Company and of IPHC; provided, however, that no such amendment, modification, supplement or waiver shall be made or effected, if such amendment, modification, supplement or waiver would, in the judgment of the Board of Directors of the Company, materially and adversely affect the shareholders of the Company.
Notwithstanding shareholder approval of this Agreement, this Agreement may be terminated and the Exchange and related transactions abandoned at any time prior to the time the Articles are filed with the Secretary of State, if the Board of Directors of the Company determines, in its sole discretion, that consummation of the Exchange would be inadvisable or not in the best interests of the Company or its shareholders.
IN WITNESS WHEREOF, each of the Company and IPHC, pursuant to authorization and approval given by its Board of Directors, has caused this Agreement to be executed as of the date first above written.
IDAHO POWER COMPANY
By: /s/ Jan B. Packwood
-------------------------
Name: Jan B. Packwood
Title: President
|
IDAHO POWER HOLDING COMPANY
By: /s/ Joseph W. Marshall
-------------------------
Name: Joseph W. Marshall
Title: Chairman of the Board
and Chief Executive Officer
|
Exhibit 5(a)
Robert W. Stahman, Esq.
General Counsel
IDACORP, Inc.
1221 West Idaho Street
Boise, Idaho 83702-5627
October 1, 1998
IDACORP, Inc.
1221 West Idaho Street
Boise, Idaho 83702-5627
Ladies and Gentlemen:
I am General Counsel to IDACORP, Inc., an Idaho corporation (the "Company"), and have acted as such in connection with Post-Effective Amendment No. 1 (the "Post-Effective Amendment") to the Idaho Power Company Registration Statement on Form S-8 (File No. 33-56071), which the Company proposes to file on or shortly after the date hereof pursuant to Rule 414(d) under the Securities Act of 1933, as amended (the "Act"). The Company is the successor issuer to Idaho Power Company, an Idaho corporation ("Idaho Power"), pursuant to a statutory share exchange ("Share Exchange") effected on October 1, 1998 pursuant to an Agreement and Plan of Exchange dated as of February 2, 1998 (the "Exchange Agreement") between Idaho Power and the Company, for the purpose of establishing the Company as a holding company over Idaho Power.
The aforesaid Registration Statement, as amended by the Post-Effective Amendment, relates to the issuance and sale by the Company of 321,389 additional shares of its Common Stock, without par value (the "Stock"), and the Preferred Share Purchase Rights attached thereto (the "Rights"), which Rights will be issued as a dividend by the Company on October 1, 1998 to shareholders of record at the close of business on that date and will be distributed by the Company with all Common Stock issued thereafter (until the expiration date of the Rights) (the Stock and the Rights collectively referred to as the "Shares") pursuant Idaho Power Company's Employee Savings Plan (the "Plan").
For purposes of this opinion, I have examined originals or copies, certified or otherwise identified to my satisfaction, of (i) the Exchange Agreement; (ii) the Post-Effective Amendment; (iii) the Rights Agreement, dated as of September 10, 1998 between the Company and The Bank of New York, as Rights Agent (the "Rights Agreement"); (iv) the Restated Articles of Incorporation and Amended Bylaws of the Company; (v) resolutions adopted by the Board of Directors of the Company relating to the Share Exchange, the Post-Effective Amendment, the Rights Agreement and the issuance and delivery of the Shares in connection with the Share Exchange and the Post-Effective Amendment; and (vi) such other documents, certificates and records as I have deemed necessary or appropriate. In such examination I have assumed the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the conformity to the original documents of all documents submitted to me as copies and the authenticity of the originals of such latter documents. As to any facts material to my opinion, I have, when relevant facts were not independently established, relied upon the aforesaid agreements, instruments, records, certificates and documents.
Based upon the foregoing, and subject to the qualifications and limitations herein expressed, I am of the opinion that:
(1) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Idaho;
(2) The Stock will be validly issued, fully paid and non-assessable and the Rights will be validly issued when (i) the Stock shall have been issued, sold and delivered for the consideration contemplated in the Post-Effective Amendment and in accordance with the actions hereinabove mentioned and (i1) the Rights shall have been issued in accordance with the terms of the Rights Agreement and in accordance with the actions hereinabove mentioned; and
(3) The Stock to be purchased in the open market is validly issued, fully paid and non-assessable, and the Rights attached thereto on and after the close of business on October 1, 1998 are validly issued and outstanding.
The matters relating to the Shares are governed by the law of the State of Idaho. In regard to the Rights, I note that Section 30-1610 of the Idaho Control Share Acquisition Law and Section 30-1706 of the Idaho Business Combination Law each provides that nothing contained in either the Idaho Control Share Acquisition Law (Sections 30-1601 through 30-1614) or the Idaho Business Combination Law (Sections 30-1701 through 30-1710), respectively, is intended to limit the corporate powers or authority of an "issuing public corporation" (as defined in such statutes), such as the Company, to take actions "which the directors may appropriately determine to be in furtherance of the protection of the interests of the corporation and its shareholders, including without limitation the authority to . . . enter into . . . arrangements", such as the Rights Agreement, that "deny rights . . . to the holder or holders of at least a specified number of shares or percentage of share ownership or voting power in certain circumstances."
Because I am not aware of any court decision applying the law of the State
of Idaho that addresses the effect of these statutory provisions or the validity
of plans similar to the Rights Agreement, it is difficult to predict how a court
applying the law of the State of Idaho would rule with respect to the issues
relating to the Rights. Nevertheless, I am able to advise you of my conclusion
concerning how a court applying the law of the State of Idaho (including, but
not limited to, Section 30- 1610 of the Idaho Control Share Acquisition Law and
Section 30- 1706 of the Idaho Business Combination Law) likely would rule. I
have conferred with LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel to the
Company, for purposes of rendering this opinion. LeBoeuf, Lamb, Greene & MacRae,
L.L.P. and I have concluded that a court applying the law of the State of Idaho,
when presented with novel questions concerning takeover matters, such as the
effect of the statutory provisions cited above and the adoption by the Company
of the Rights Agreement, most likely would apply the corporate law of the State
of Delaware, the most fully developed body of corporate law in the United
States. Accordingly, in rendering this opinion, I have assumed that Delaware
corporate law, with which I am familiar, provides an indication of what
standards a court would apply if it were required to apply the law of the State
of Idaho considering the matters relating to the Rights.
With respect to this opinion, I do not hold myself out as an expert on the laws of any state other than the State of Idaho. My opinions expressed above are limited to the laws of the State of Idaho, the General Corporation Law of the State of Delaware and the federal laws of the United States.
I hereby consent to the filing of this opinion as an exhibit to the Post-Effective Amendment and to the references to me contained therein under the heading "Interests of Named Experts and Counsel."
Very truly yours,
Robert W. Stahman
Exhibit 5(b)
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019
October 1, 1998
IDACORP, Inc.
1221 West Idaho Street
Boise, Idaho 83702-5627
Ladies and Gentlemen:
We have acted as counsel to IDACORP, Inc., an Idaho corporation (the "Company"), in connection with Post-Effective Amendment No. 1 (the "Post-Effective Amendment") to the Idaho Power Company Registration Statement on Form S-8 (File No. 33-56071), which the Company proposes to file on or shortly after the date hereof pursuant to Rule 414(d) under the Securities Act of 1933, as amended (the "Act"). The Company is successor issuer to Idaho Power Company, an Idaho corporation ("Idaho Power"), pursuant to a statutory share exchange ("Share Exchange") effected on October 1, 1998, pursuant to an Agreement and Plan of Exchange dated as of February 2, 1998 (the "Exchange Agreement") between Idaho Power and the Company, for the purpose of establishing the Company as a holding company over Idaho Power.
The aforesaid Registration Statement, as amended by the Post-Effective Amendment, relates to the issuance and sale by the Company of 321,389 additional shares of its Common Stock, without par value (the "Stock"), and the Preferred Share Purchase Rights attached thereto (the "Rights"), which Rights will be issued as a dividend by the Company on October 1, 1998 to shareholders of record at the close of business on that date and will be distributed by the Company with all Common Stock issued thereafter (until the expiration date of the Rights) (the Stock and the Rights collectively referred to as the "Shares") pursuant to Idaho Power Company's Employee Savings Plan (the "Plan").
For purposes of this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Exchange Agreement; (ii) the Post- Effective Amendment; (iii) the Rights Agreement, dated as of September 10, 1998 between the Company and The Bank of New York, as Rights Agent (the "Rights Agreement"); (iv) the Restated Articles of Incorporation and Amended Bylaws of the Company; v) resolutions adopted by the Board of Directors of the Company relating to the Share Exchange, the Post-Effective Amendment, the Rights Agreement and the issuance and delivery of the Shares in connection with the Share Exchange and the Post-Effective Amendment; and (vi) such other documents, certificates and records as we have deemed necessary or appropriate. In such examination we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to us as copies and the authenticity of the originals of such latter documents. As to any facts material to our opinions, we have, when relevant facts were not independently established, relied upon the aforesaid agreements, instruments, records, certificates and documents. We have also assumed the regularity of all corporate procedures.
Based upon the foregoing, and subject to the qualifications and limitations herein expressed, we are of the opinion that:
(1) The Stock will be validly issued, fully paid and non-assessable and the Rights will be validly issued when (i) the Stock shall have been issued, sold and delivered for the consideration contemplated in the Post-Effective Amendment and in accordance with the actions hereinabove mentioned and (ii) the Rights shall have been issued in accordance with the terms of the Rights Agreement and in accordance with the actions hereinabove mentioned; and
(2) The Stock to be purchased in the open market is validly issued, fully paid and non-assessable, and the Rights attached thereto on and after the close of business on October 1, 1998 are validly issued and outstanding.
The matters relating to the Shares are governed by the law of the State of Idaho. In regard to the Rights, we note that Section 30-1610 of the Idaho Control Share Acquisition Law and Section 30-1706 of the Idaho Business Combination Law each provides that nothing contained in either the Idaho Control Share Acquisition Law (Sections 30-1601 through 30-1614) or the Idaho Business Combination Law (Sections 30-1701 through 30-1710), respectively, is intended to limit the corporate powers or authority of an "issuing public corporation" (as defined in such statutes), such as the Company, to take actions "which the directors may appropriately determine to be in furtherance of the protection of the interests of the corporation and its shareholders, including without limitation the authority to . . . enter into . . . arrangements", such as the Rights Agreement, that "deny rights. . . to the holder or holders of at least a specified number of shares or percentage of share ownership or voting power in certain circumstances."
Because we are not aware of any court decision applying the law of the
State of Idaho that addresses the effect of these statutory provisions or the
validity of plans similar to the Rights Agreement, it is difficult to predict
how a court applying the law of the State of Idaho would rule with respect to
the issues relating to the Rights. Nevertheless, we are able to advise you of
our opinion as expressed herein, which reflects our professional conclusion
concerning how a court applying the law of the State of Idaho (including, but
not limited to, Section 30- 1610 of the Idaho Control Share Acquisition Law and
Section 30- 1706 of the Idaho Business Combination Law) likely would rule.
Although we are not admitted to practice in the State of Idaho, we have
conferred with Robert W. Stahman, Esq., Vice President, General Counsel and
Secretary of the Company, for purposes of rendering this opinion. General
Counsel and we have concluded that a court applying the law of the State of
Idaho, when presented with novel questions concerning takeover matters, such as
the effect of the statutory provisions cited above and the adoption by the
Company of the Rights Agreement, most likely would apply the corporate law of
the State of Delaware, the most fully developed body of corporate law in the
United States. Accordingly, in rendering our opinion, we have assumed that
Delaware corporate law, as expressed in court decisions applying that law, with
which we are familiar, provides an indication of what standards a court would
apply if it were required to apply the law of the State of Idaho considering the
matters relating to the Rights.
With respect to this opinion, we do not hold ourselves out as experts on the laws of any state other than the State of New York. Our opinions expressed above are limited to the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States. Insofar as this opinion involves matters of the law of the State of Idaho, we have relied upon an opinion of even date herewith addressed to you by Robert W. Stahman, Vice President, General Counsel and Secretary of the Company.
We hereby consent to the filing of this opinion as an exhibit to the Post-Effective Amendment and the reference to our firm contained therein under the heading "Interests of Named Experts and Counsel."
Very truly yours,
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
Exhibit 15
September 30, 1998
IDACORP, Inc.
Boise, Idaho
We have made a review, in accordance with standards established by the American Institute of Certified Public Accountants, of the unaudited interim financial information of Idaho Power Company and subsidiaries for the periods ended March 31, 1998 and 1997 and June 30, 1998 and 1997, as indicated in our reports dated May 8, 1998 and August 3, 1998, respectively; because we did not perform an audit, we expressed no opinion on that information.
We are aware that our reports referred to above, which were included in Idaho Power Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998 and June 30, 1998, are being used in this Post-Effective Amendment No. 1 of IDACORP, Inc. to Registration Statement No. 33-56071 of Idaho Power Company on Form S-8.
We also are aware that the aforementioned reports, pursuant to Rule 436(c) under the Securities Act of 1933, are 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.
DELOITTE & TOUCHE LLP
Boise, Idaho
Exhibit 23
Independent Auditors' Consent
IDACORP, Inc.
We consent to the incorporation by reference in this Post- Effective Amendment No. 1 of IDACORP, Inc. to Registration Statement No. 33-56071 of Idaho Power Company on Form S-8 of our reports dated January 30, 1998 and May 29, 1998, appearing in the Annual Report on Form 10-K of Idaho Power Company for the year ended December 31, 1997 and in the Annual Report on Form 11-K of Idaho Power Company Employee Savings Plan for the year ended December 31, 1997, respectively.
Deloitte & Touche LLP
September 30, 1998
Boise, Idaho