SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
__________
FORM 8-A/A
AMENDMENT NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
IDACORP, INC.
(Exact Name of Registrant as Specified in Its Charter)
Idaho 82-0505802
(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
1221 West Idaho Street
P.O. Box 70
Boise, Idaho 83707
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of registration of a class of
securities pursuant to securities pursuant to
Section 12(b) of the Exchange Act Section 12(g) of the Exchange Act
and is effective pursuant to and is effective pursuant to
General Instruction A.(c), General Instruction A.(d), check
check the following box. |X| the following box. |_|
Securities Act registration statement file number to which this form
relates: ____________________
(if applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
Common Stock, without par value New York Stock Exchange
Pacific Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
Item 1. Description of Registrant's Securities to be Registered.
This amendment no. 1 to the registration statement on Form 8-A/A amends the
registration statement on Form 8-A that we filed on October 20, 1999.
DESCRIPTION OF COMMON STOCK
General
The following is a description of our common stock. This description
contains a summary of the material terms of our common stock. You should refer
to our articles of incorporation, as amended, and our amended bylaws, which we
have filed with the Securities and Exchange Commission, because these documents
and the laws of the state of Idaho, and not this summary, will govern your
rights as a holder of common stock.
Our articles of incorporation, as amended to date, authorize us to issue
120,000,000 shares of common stock, without par value, and 20,000,000 shares of
preferred stock, without par value.
Dividend Rights
Subject to the prior rights of the preferred stock, holders of our common
stock are entitled to receive any dividends our board of directors may declare
on the common stock. The board of directors may declare dividends from any
property legally available for this purpose.
Voting Rights
The common stock has one vote per share. The holders of our common stock
are entitled to vote on all matters to be voted on by shareholders. The holders
of our common stock are not entitled to cumulative voting in the election of
directors.
Holders of our preferred stock will not have any right to vote except as
established by our board of directors or as provided in our articles of
incorporation or bylaws or by state law. The A series preferred stock, if
issued, will have voting rights.
A majority of the outstanding shares entitled to vote on a particular
matter at a meeting constitutes a quorum. Action on a matter is approved if the
votes cast favoring the action exceed the votes cast opposing the action, unless
our articles of incorporation, the Idaho Business Corporation Act or our bylaws
require a greater number of affirmative votes. A plurality of the votes cast
determines the election of directors.
Liquidation Rights
Subject to the prior rights of the preferred stock, if we liquidate,
dissolve or wind up, whether this is voluntary or not, the holders of our common
stock will be entitled to receive any net assets available for distribution to
shareholders.
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Other Rights
The common stock is not liable to further calls or assessment. The holders
of our common stock are not entitled to subscribe for or purchase additional
shares of our capital stock. Our common stock is not subject to redemption and
does not have any conversion or sinking fund provisions.
Effects on Our Common Stock If We Issue Preferred Stock
Our board of directors has the authority, without further action by
shareholders, to issue up to 20,000,000 shares of preferred stock in one or more
series. The board of directors has the authority to determine the terms of each
series of preferred stock, within the limits of the articles of incorporation
and the laws of the state of Idaho. These terms include the number of shares in
a series, dividend rights, liquidation preferences, terms of redemption,
conversion rights and voting rights.
If we issue preferred stock, it may negatively affect the holders of our
common stock. These possible negative effects include diluting the voting power
of shares of our common stock and affecting the market price of our common
stock. In addition, the ability of our board of directors to issue preferred
stock without shareholder approval may delay or prevent a change in control of
the company.
Although there are no shares of preferred stock currently outstanding, we
have reserved 1,200,000 shares of A series preferred stock for issuance in
connection with our shareholder rights plan.
PROVISIONS OF OUR ARTICLES OF INCORPORATION AND OUR BYLAWS THAT COULD DELAY OR
PREVENT A CHANGE IN CONTROL
Although it is not the intention of the board of directors to discourage
legitimate offers to enhance shareholder value, the existence of unissued common
stock, the ability of the board of directors to issue preferred stock without
further shareholder action and other provisions of our articles of incorporation
and bylaws may discourage transactions aimed at obtaining control of IDACORP.
Provisions Relating to Our Board of Directors
Classified Board
We have divided the members of our board of directors into three classes
having staggered terms. The number of directors in each class is as nearly equal
as possible. Directors in each class are elected for a three-year term.
This classification of the board of directors may prevent shareholders from
changing the membership of the entire board of directors in a relatively short
period of time. At least two annual meetings, instead of one, generally will be
required to change the majority of directors. The classified board provisions
could have the effect of prolonging the time required for a shareholder with
significant voting power to gain majority representation on the board of
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directors. Where majority or supermajority board of directors approval is
necessary for a transaction, such as an interested shareholder business
combination, the inability to immediately gain majority representation on the
board of directors could discourage takeovers and tender offers.
Number of Directors, Vacancies, Removal of Directors
Our bylaws provide that the board of directors will have at least 9 and at
most 15 directors. The size of the board may be changed by a two-thirds vote of
shareholders entitled to vote, or by a majority vote of the board of directors.
A majority of the board decides the exact number of directors at a given time.
The board fills any new directorships it creates and any vacancies.
Directors may be removed by the shareholders only for cause and only if at
least two-thirds of the shares of our outstanding voting stock approve the
removal.
These provisions may delay or prevent a shareholder from gaining control of
the board.
Meetings of Shareholders
Calling of a Special Meeting
The president, a majority of the board of directors or the chairman of the
board may call a special meeting of the shareholders at any time. Holders of at
least 20% of the outstanding shares entitled to vote may call a special meeting
if such holders sign, date and deliver to our secretary one or more written
demands describing the purpose(s) of the proposed meeting. Upon receipt of one
or more written demands from such holders, our secretary is responsible for
determining whether such demand or demands conform to the requirements of the
Idaho Business Corporation Act, our articles of incorporation and bylaws. After
making an affirmative determination, our secretary will prepare, sign and
deliver the notices for such meeting. The shareholders may suggest a time and
place in their demand(s), but the board of directors will determine the time and
place of any such meeting by resolution. These provisions for calling a special
meeting may delay or prevent a person from bringing matters before a shareholder
meeting.
No Cumulative Voting
Our articles of incorporation do not provide for cumulative voting. This
could prevent directors from being elected by a relatively small group of
shareholders.
Advance Notice Provisions
Our bylaws require that for a shareholder to nominate a director or bring
other business before an annual meeting, the shareholder must give notice to our
secretary not later than the close of business on the 120th day prior to the
first anniversary of the date on which we first mailed proxy materials for the
preceding year's annual meeting. If the date of the annual meeting is more than
30 days before or after the anniversary date of the preceding year's annual
meeting,
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the shareholder must deliver notice no later than the close of business on the
10th day following the day on which we first publicly announce the date of such
meeting.
Our bylaws also limit business at a special meeting to the purposes stated
in the notice of the special meeting.
These advance notice provisions may delay a shareholder from bringing
matters before a shareholder meeting. The provisions may provide enough time for
our board of directors to begin litigation or take other steps to respond to
these matters, or to prevent them from being acted upon, if our board of
directors finds it necessary or desirable for any reason.
Amendment of Articles of Incorporation
Our articles of incorporation require an 80% vote of shareholders entitled
to vote in order to amend the provisions relating to the board of directors and
the amendment of our articles of incorporation, unless such amendment is
recommended by two-thirds of the continuing directors, as defined.
Amendment of Bylaws
Amendment of the bylaws relating to the board of directors or advance
notice provisions for shareholder meetings requires a two-thirds vote of
shareholders entitled to vote or a majority vote of the board of directors.
PREFERRED SHARE PURCHASE RIGHTS
On September 10, 1998, our board of directors declared a dividend
distribution of one preferred share purchase right for each share of our common
stock outstanding as of October 1, 1998. Since that time, we have issued and
will continue to issue one right with each additional share of common stock we
issue until the rights expire, are redeemed or exchanged or become exercisable.
We have authorized and reserved 1,200,000 shares of our A series preferred stock
for issuance if the rights become exercisable.
The rights become exercisable on the earlier of ten business days after a
third party announces its acquisition of 20% or more of our outstanding voting
stock and ten business days after a third party makes a tender offer or exchange
offer to acquire 20% or more of our outstanding voting stock. Each right, when
it becomes exercisable, entitles its holder, other than the third party that has
acquired 20% or more of our voting stock, to purchase from us one one-hundredth
of a share of our A series preferred stock at a price of $95. The value of this
one one-hundredth of a share is intended to approximate the value of one share
of common stock. However, when a third party has acquired, or obtained the right
to acquire, 20% or more of our voting stock, a holder who exercises this right
for $95 will have the right to receive the number of shares of our common stock,
and/or, at our option, A series preferred stock, that have a market value of
$190. Rights owned by the third party will be null and void. Also, under the
following circumstances, a holder who exercises this right for $95 will have the
right to receive the number of shares of common stock of an acquiring company
that have a market value of $190, instead of one one-hundredth of a share of our
A series preferred stock or shares of our common stock:
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o we merge with another person and we are not the surviving entity;
o we merge with another person and we are the surviving entity in the
transaction, and our common stock is exchanged for shares of another
company or cash or other property;
o we sell or transfer 50% or more of our assets or earning power;
o a person who has acquired, or obtained the right to acquire, 20% or
more of our outstanding voting stock engages in some types of
transactions with us which benefit the person due to its ownership of
our stock; or
o the proportionate share of a person who has acquired, or obtained the
right to acquire, 20% or more of our outstanding voting stock is
increased by more than 1% as a result of reclassification of
securities or recapitalization or other transaction.
As a result, the rights have the effect of causing substantial dilution to
a person or group that attempts to acquire us on terms our board of directors
does not approve and making it significantly more expensive for that person or
group to acquire control of us.
For example, assuming the price of our common stock is $38 per share at the
time of determination, each holder of our common stock will have the right to
purchase for $95 the number of shares equal to $190, divided by $38, or five
shares. Consequently, a shareholder would effectively obtain $190 in value for
$95. Assuming there are approximately 38 million shares of our common stock
outstanding, each with a right attached, holders of our common stock
collectively have an aggregate value in their rights of approximately $3.6
billion. That is, regardless of the market price for our common stock, whenever
the rights become exercisable, our shareholders collectively have the ability to
spend $3.6 billion to acquire $7.2 billion in stock. That dilution could make it
significantly more expensive for a hostile takeover to occur. The rights should
not interfere with any merger or other business combination our board of
directors approves since our board of directors may elect to redeem the rights
at $0.01 per right until ten business days after a third party announces its
acquisition of 20% or more of our outstanding voting stock. The rights expire on
September 10, 2008, unless we redeem or exchange them earlier.
We may adjust the $95 purchase price and the number of shares that may be
purchased.
The description of our preferred share purchase rights is contained in the
registration statement on Form 8-A filed on September 15, 1998, as amended by
amendment no. 1 on Form 8-A/A filed on October 20, 1999 and amendment no. 2 on
Form 8-A/A filed on September 28, 2004, and in the Rights Agreement, dated as of
September 10, 1998, between Wells Fargo Bank, N.A., as successor to The Bank of
New York, as rights agent, and us. We incorporate these documents herein by
reference.
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PROVISIONS OF IDAHO LAW THAT COULD DELAY OR PREVENT
A CHANGE IN CONTROL
Idaho Control Share Acquisition Law
We are subject to the provisions of the Idaho Control Share Acquisition
Law. This law is designed to protect minority shareholders in the event that a
person acquires or proposes to acquire shares of voting stock giving it at least
20%, at least 33 1/3%, or more than 50% of the voting power in the election of
our directors. Under this law, an acquiring person must deliver to us an
information statement that includes the acquiring person's identity, its
acquisition plans and its financing. The acquiring person cannot vote the shares
it holds that are greater than the applicable percentages unless two-thirds of
the outstanding voting stock, excluding shares owned by the acquiring person,
approves of such voting power. If the acquiring person so requests and complies
with other requirements, we must hold a special meeting within 55 days of
receiving the information statement from the acquiring person for the
shareholders to vote. If the acquiring person does not deliver the information
statement, or our shareholders do not approve such voting power, we may redeem
all of the acquiring person's shares that exceed the applicable percentage at
their fair market value.
Idaho Business Combination Law
We are also subject to the Idaho Business Combination Law. This law
prohibits us from engaging in certain business combinations with a person who
owns 10% or more of our outstanding voting stock for a three-year period after
the person acquires the shares. This prohibition does not apply if our board of
directors approved of the business combination or the acquisition of our shares
before the person acquired 10% of the shares. After the three-year period, we
could engage in a business combination with the person only if two-thirds of our
outstanding voting stock, excluding shares owned by the person, approve, or the
business combination meets minimum price requirements.
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Item 2. Exhibits.
1. Articles of Incorporation of IDACORP, Inc. (incorporated by reference to
Exhibit 3.1 to Amendment No. 1 to the Registration Statement on Form S-3 of
IDACORP, Inc. (File No. 333-64737), filed on November 4, 1998).
2. Articles of Amendment to Articles of Incorporation of IDACORP, Inc., as
filed with the Secretary of State of Idaho on March 9, 1998 (incorporated
by reference to Exhibit 3.2 to Amendment No. 1 to the Registration
Statement on Form S-3 of IDACORP, Inc. (File No. 333-64737), filed on
November 4, 1998).
3. Articles of Amendment to Articles of Incorporation of IDACORP, Inc.
creating A Series Preferred Stock, without par value, as filed with the
Secretary of State of Idaho on September 17, 1998 (incorporated by
reference to Exhibit 3(b) to Post-Effective Amendment No. 1 to the
Registration Statement on Form S-3 of IDACORP, Inc. (File No.
333-00139-99), filed on September 22, 1998).
4. Amended Bylaws of IDACORP, Inc., amended on March 20, 2003 (incorporated by
reference to Exhibit 4(e) to the Registration Statement on Form S-8 of
IDACORP, Inc. (File No. 333-104254), filed on April 2, 2003).
5. Rights Agreement, dated as of September 10, 1998, between IDACORP, Inc. and
Wells Fargo Bank, N.A., as successor to The Bank of New York, as rights
agent, including form of right certificate (incorporated by reference to
Exhibit 4 to the Current Report on Form 8-K of IDACORP, Inc., filed on
September 15, 1998).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this amendment to the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
IDACORP, INC.
Date: September 28, 2004 By: /s/ Darrel T. Anderson
----------------------
Name: Darrel T. Anderson
Title: Senior Vice President -
Administrative Services
and Chief Financial Officer
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EXHIBIT INDEX
Number Description
------ -----------
1. Articles of Incorporation of IDACORP, Inc. (incorporated by reference
to Exhibit 3.1 to Amendment No. 1 to the Registration Statement on Form
S-3 of IDACORP, Inc. (File No. 333-64737), filed on November 4, 1998).
2. Articles of Amendment to Articles of Incorporation of IDACORP, Inc., as
filed with the Secretary of State of Idaho on March 9, 1998
(incorporated by reference to Exhibit 3.2 to Amendment No. 1 to the
Registration Statement on Form S-3 of IDACORP, Inc. (File No.
333-64737), filed on November 4, 1998).
3. Articles of Amendment to Articles of Incorporation of IDACORP, Inc.
creating A Series Preferred Stock, without par value, as filed with the
Secretary of State of Idaho on September 17, 1998 (incorporated by
reference to Exhibit 3(b) to Post-Effective Amendment No. 1 to the
Registration Statement on Form S-3 of IDACORP, Inc. (File No.
333-00139-99), filed on September 22, 1998).
4. Amended Bylaws of IDACORP, Inc., amended on March 20, 2003
(incorporated by reference to Exhibit 4(e) to the Registration
Statement on Form S-8 of IDACORP, Inc. (File No. 333-104254), filed on
April 2, 2003).
5. Rights Agreement, dated as of September 10, 1998, between IDACORP, Inc.
and Wells Fargo Bank, N.A., as successor to The Bank of New York, as
rights agent, including form of right certificate (incorporated by
reference to Exhibit 4 to the Current Report on Form 8-K of IDACORP,
Inc., filed on September 15, 1998).
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