Exhibit 1.1
3,500,000 Shares
IDACORP, INC.
COMMON STOCK, WITHOUT PAR VALUE
UNDERWRITING AGREEMENT
December 9, 2004
December 9, 2004
Morgan Stanley & Co. Incorporated
As representative of the several
Underwriters named in Schedule I hereto,
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
IDACORP, Inc., an Idaho corporation (the "Company"), proposes to issue and
sell to the several Underwriters named in Schedule I hereto (the "Underwriters")
its common stock, without par value (the "Common Stock"), and the preferred
share purchase rights attached thereto (the "Rights") in an aggregate amount of
3,500,000 shares (collectively referred to as the "Firm Shares"). The Company
also proposes to issue and sell to the several Underwriters not more than an
additional 525,000 shares of its Common Stock and Rights (collectively, the
"Additional Shares"), if and to the extent that you, as representative of the
several Underwriters, shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such Additional Shares granted to the
Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-83434),
including a base prospectus, relating to the Shares and the offering thereof
from time to time in accordance with Rule 415 under the Securities Act of 1933,
as amended (the "Securities Act"). Such registration statement was declared
effective by the Commission on March 6, 2002 and no post-effective amendment to
such registration statement has been filed as of the date of this Agreement. A
final prospectus supplement relating to the Shares, the terms of the offering
thereof and the other matters set forth therein has been prepared and will be
filed pursuant to Rule 424 under the Securities Act in the form first used to
confirm sales of the Shares (the "Prospectus Supplement"). The aforementioned
registration statement as amended as of the date hereof, including the exhibits
thereto, is hereinafter referred to as the "Registration Statement"; the base
prospectus included therein, as supplemented by the Prospectus Supplement, is
herein called the "Prospectus," in each case including the documents filed by
the Company with the Commission pursuant to the Securities Exchange Act of 1934,
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as amended (the "Exchange Act") that are incorporated by reference therein (it
being understood that any statement contained in the Registration Statement or
Prospectus or in any document incorporated by reference therein or deemed to be
incorporated by reference therein shall be deemed to be modified to the extent
such statement is modified or superseded by a statement in any subsequently
filed document which forms part of the Registration Statement or Prospectus or
is incorporated by reference or deemed to be incorporated by reference therein).
1. Representations and Warranties. The Company represents and warrants to
and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the best of
the Company's knowledge, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
the Registration Statement, when it became effective, did not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply and,
as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iv) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the state of Idaho, has the
corporate power and authority to own its property and to conduct its
business in all material respects as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified
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or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(d) Each of Idaho Power Company, IDACORP Financial Services, Inc.,
IDACOMM, Inc. and IDATECH, LLC (each, a "Subsidiary") has been duly
organized and is validly existing as a corporation or limited liability
company, as applicable, and to the extent such concept is applicable, is in
good standing under the laws of its jurisdiction of organization, has the
corporate or other power and authority to own its property and to conduct
its business in all material respects as described in the Prospectus and is
duly qualified to transact business and, to the extent such concept is
applicable, is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole; all of the issued shares of capital
stock of each Subsidiary that is a corporation and which the Registration
Statement and Prospectus describe as being wholly owned by the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock outstanding prior to the issuance of
the Shares and the Common Stock offered pursuant to this Agreement have
been duly authorized and are, or when issued and delivered in accordance
with the terms of this Agreement will be, validly issued, fully paid and
non-assessable and the stockholders of the Company will have no preemptive
or similar rights with respect thereto.
(h) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not result in
a violation of any provision of applicable law to which the Company is
subject or the certificate of incorporation or by-laws of the Company or
any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as
a whole, or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency having jurisdiction
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over the Company or any Subsidiary that has not already been obtained is
required for the performance by the Company of its obligations under this
Agreement, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Shares.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(j) There are no legal or governmental proceedings pending of which
the Company has received notice to which the Company or any of its
subsidiaries is a party, or to which any of the properties of the Company
or any of its subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described; and,
to the best knowledge of the Company, no such proceedings have been
threatened. There are no material contracts, statutes, regulations or other
documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(k) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(l) The Company is not, and after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(m) Except as described in the Registration Statement or the
Prospectus, the Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
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permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not, singly or
in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(n) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to
the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name at $28.80 a share (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have the
right to purchase, severally and not jointly, up to 525,000 Additional Shares at
the Purchase Price. You may exercise this right on behalf of the Underwriters in
whole or from time to time in part by giving written notice of each election to
exercise the option not later than 30 days after the date of this Agreement. Any
exercise notice shall specify the number of Additional Shares to be purchased by
the Underwriters and the date on which such shares are to be purchased. Each
purchase date must be at least one business day after the written notice is
given and may not be earlier than the closing date for the Firm Shares nor later
than ten business days after the date of such notice. Additional Shares may be
purchased as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. On each
day, if any, that Additional Shares are to be purchased (an "Option Closing
Date"), each Underwriter agrees, severally and not jointly, to purchase the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as you may determine) that bears the same proportion to the total number
of Additional Shares to be purchased on such Option Closing Date as the number
of Firm Shares set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
The Company hereby agrees that, without the prior written consent of Morgan
Stanley & Co. Incorporated on behalf of the Underwriters, it will not, during
the period ending 90 days after the date of the Prospectus, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option
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or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to
be sold hereunder, (B) the issuance by the Company of shares of Common Stock
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof, (C) transactions relating to shares of Common
Stock or other securities acquired in open market transactions after the
completion of the offering contemplated by this Agreement, (D) grants of
employee or director stock options or issuances of shares of Common Stock to
employees or directors, in each case pursuant to the terms of a plan in effect
on the date hereof or (E) the sale of shares of Common Stock pursuant to the
Company's dividend reinvestment plan.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the execution of this Agreement as in your judgment is
advisable. The Company is further advised by you that the Shares are to be
offered to the public initially at $30.00 a share (the "Public Offering Price")
and to certain dealers selected by you at a price that represents a concession
not in excess of $0.67 a share under the Public Offering Price.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the
Company in Federal or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on December 15, 2004, or at such
other time on the same or such other date, not later than December 21, 2004, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Closing Date." The documents to be delivered by
or on behalf of the parties hereto pursuant to Section 5 hereof in connection
with the purchase of the Firm Shares will be delivered on the Closing Date at
the offices of LeBoeuf, Lamb, Greene & MacRae, L.L.P., 125 West 55th Street, New
York, NY 10019 (the "Closing Location").
Payment for any Additional Shares shall be made to the Company in Federal
or other funds immediately available in New York City against delivery of such
Additional Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on the date specified in the corresponding
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than January 24, 2005, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "Option
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Closing Date." The documents to be delivered by or on behalf of the parties
hereto pursuant to Section 5 hereof in connection with the purchase of the
Additional Shares will be delivered on the Option Closing Date at the Closing
Location.
The Firm Shares and Additional Shares shall be registered in such names and
in such denominations as you shall request in writing not later than one full
business day prior to the Closing Date or the applicable Option Closing Date, as
the case may be. The Firm Shares and Additional Shares shall be delivered to you
through the facilities of the Depository Trust Company on the Closing Date or an
Option Closing Date, as the case may be, for the respective accounts of the
several Underwriters, with any transfer taxes payable in connection with the
transfer of the Shares to the Underwriters duly paid, against payment of the
Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of the
Company to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that no stop order with respect to the effectiveness of
the Registration Statement shall have been issued under the Securities Act nor
any proceedings initiated under Sections 8(d) and 8(e) of the Securities Act.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
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(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 5(a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date. The officer signing and delivering such certificate may
rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P., outside counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Idaho;
(ii) the shares of Common Stock have been duly authorized and,
when issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such shares of Common Stock will not be subject to any
preemptive or similar rights;
(iii) the Rights will be legally issued and binding obligations
of the Company when they shall have been issued in accordance with the
Rights Agreement, dated as of September 10, 1998 between the Company
and Wells Fargo Bank, successor to The Bank of New York, as Rights
Agent (the "Rights Agreement") and in accordance with the actions
hereinabove mentioned;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the statements relating to legal matters, documents or
proceedings included in the Prospectus under the captions "Description
of Common Stock" and "Underwriting" fairly summarize in all material
respects such matters, documents or proceedings;
(vi) the Company is exempt from the provisions of the Public
Utility Holding Company Act of 1935 applicable to it as a
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holding company except Section 9(a)(2) thereof and is exempt with
respect to the issuance and sale of the Shares; and
(vii) the Company is not, and after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus will not be, required to register as an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
The following statement will be included in the letter following the
enumerated opinions set forth above:
Nothing has come to the attention of such counsel that causes such counsel
to believe that (A) any document filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and the Prospectus
(except for the financial statements and other financial data included
therein, as to which such counsel need not express any belief) did not
comply when so filed as to form in all material respects with the
requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder; (B) the Registration Statement or the
Prospectus (except for the financial statements and other financial data
included therein, as to which such counsel need not express any belief) do
not comply as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder, (C) the Registration Statement or the prospectus included
therein (except for the financial statements and other financial data
included therein, as to which such counsel need not express any belief) at
the time the Registration Statement became effective contained any untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading or (D) the Prospectus (except for the financial statements and
other financial data included therein, as to which such counsel need not
express any belief) as of its date or as of the Closing Date contained or
contains any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering the foregoing opinion, LeBoeuf, Lamb, Greene & MacRae, L.L.P.
may rely upon the opinion of Thomas R. Saldin, Esq., Senior Vice President,
General Counsel and Secretary of the Company, as to all matters of Idaho
law.
In rendering the opinion set forth in paragraph (iii) above, LeBoeuf, Lamb,
Greene & MacRae, L.L.P. may qualify the opinion by stating as follows:
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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 provide 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
express a professional judgment as to 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 Thomas R. Saldin, Esq., Senior 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, the adoption by the Company of the Rights Agreement and the status
of the Rights, 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. If, however, such a
court did not apply the corporate law of Delaware to the Rights Agreement
and the Rights, we cannot express a professional judgment as to the
conclusions such a court would reach or as to the effect of such
conclusions, whether positive or negative, on the Rights.
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(d) The Underwriters shall have received on the Closing Date an
opinion of Thomas R. Saldin, Esq., Senior Vice President, General Counsel
and Secretary of the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the state of
Idaho, has the corporate power and authority to own its property and
to conduct its business in all material respects as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(ii) each Subsidiary of the Company has been duly organized and
is validly existing as a corporation or limited liability company, as
applicable, and to the extent such concept is applicable, is in good
standing under the laws of its jurisdiction of organization, has the
corporate or other power and authority to own its property and to
conduct its business in all material respects as described in the
Prospectus and is duly qualified to transact business and, to the
extent such concept is applicable, is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(iii) the shares of Common Stock outstanding prior to the
issuance of the Shares and the shares of Common Stock offered pursuant
to the Agreement have been duly authorized and are, or when issued and
delivered in accordance with the terms of this Agreement will be,
validly issued, fully paid and non-assessable, and such shares of
Common Stock will not be subject to any preemptive or similar rights;
(iv) the Rights will be legally issued and binding obligations of
the Company when they shall have been issued in accordance with the
Rights Agreement and in accordance with the actions hereinabove
mentioned;
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(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not result in the violation of any provision of applicable law
known to me to which the Company is subject or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares;
(vii) the statements relating to legal matters, documents or
proceedings included in the Prospectus under the captions "Description
of Common Stock" and "Underwriting" fairly summarize in all material
respects such matters, documents or proceedings; and
(viii) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed as
required.
The following statement will be included in the letter following the
enumerated opinions set forth above:
Nothing has come to the attention of such counsel that causes such counsel
to believe that (A) any document filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and the Prospectus
(except for the financial statements and other financial data included
therein, as to which such counsel need not express any belief) did not
comply when so filed as to form in all material respects with the
13
requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder; (B) the Registration Statement or the
Prospectus (except for the financial statements and other financial data
included therein, as to which such counsel need not express any belief) do
not comply as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder, (C) the Registration Statement or the prospectus included
therein (except for the financial statements and other financial data
included therein, as to which such counsel need not express any belief) at
the time the Registration Statement became effective contained any untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading or (D) the Prospectus (except for the financial statements and
other financial data included therein, as to which such counsel need not
express any belief) as of its date or as of the Closing Date contained or
contains any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering the opinion set forth in paragraph (iv) above, the General
Counsel may qualify such opinion by stating as follows:
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 provide 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
express a professional judgment as to 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 opinion as expressed
herein, which reflects my professional conclusion concerning how a court
applying the law of the State of Idaho (including, but not limited to,
14
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, the adoption by the Company of the Rights Agreement and the
status of the Rights, 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, as expressed in court decisions applying that 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. If, however, such a court
did not apply the corporate law of Delaware to the Rights Agreement and the
Rights, I cannot express a professional judgment as to the conclusions such
a court would reach or as to the effect of such conclusions, whether
positive or negative, on the Rights.
(e) The Underwriters shall have received on the Closing Date an
opinion of Robert W. Stahman, Esq, the former Vice President, General
Counsel and Secretary of the Company, dated the Closing Date, to the effect
that after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required.
(f) The Underwriters shall have received on the Closing Date such
opinion or opinions of Sullivan & Cromwell LLP, counsel for the
Underwriters, dated the Closing Date, with respect to the validity of the
Shares, this Agreement and other related matters as they may reasonably
request, and Sullivan & Cromwell LLP shall have received such papers and
information as they may reasonably request for the purpose of enabling them
to pass upon such matters. In rendering their opinions, Sullivan & Cromwell
LLP may rely upon the opinion of Thomas R. Saldin, Esq., Senior Vice
President, General Counsel and Secretary of the Company, as to all matters
of Idaho law.
15
(g) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters,
from Deloitte & Touche LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Registration Statement and the Prospectus; provided that the
letter delivered on the Closing Date shall use a "cut-off date" not earlier
than the date hereof.
(h) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and directors and officers of the Company, as
such term is defined in Rule 16a-1(f) of the Exchange Act, relating to
sales and certain other dispositions of shares of Common Stock or certain
other securities, delivered to you on or before the date hereof, shall be
in full force and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to you on the applicable Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Shares to be sold on such Option Closing Date and other matters related to the
issuance of such Additional Shares.
6. Covenants of the Company. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants with each Underwriter
as follows:
(a) To furnish to you five signed copies of the Registration Statement
(including exhibits thereto and documents incorporated by reference) and
for delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto but including documents incorporated by
reference) and to furnish to you in New York City, prior to 10:00 a.m. New
York City time on the business day next succeeding the date of this
Agreement and during the period mentioned in Section 6(c) below, as many
copies of the Prospectus, any documents incorporated by reference, and any
supplements and amendments thereto or to the Registration Statement as you
may reasonably request, in each case without charge. The terms "supplement"
and "amendment" or "amend" as used in this Agreement shall include all
documents subsequently filed by the Company with the Commission pursuant to
the Exchange Act that are deemed to be incorporated by reference in the
Prospectus.
16
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file, unless required by the Securities Act or the
Exchange Act, any such proposed amendment or supplement to which you
reasonably object, and to file with the Commission within the applicable
period specified in Rule 424(b) under the Securities Act any prospectus
required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriters or for the
Company the Prospectus is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters or for
the Company, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which Shares
may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities laws of such jurisdictions as you shall reasonably designate,
except that the Company shall not be required in connection therewith to
qualify as a foreign corporation or dealer in securities or to execute a
general consent to service of process in any jurisdiction.
(e) To file timely such reports pursuant to the Exchange Act as are
necessary in order to make generally available to the Company's security
holders an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder.
(f) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses
17
of the Company's counsel and the Company's accountants in connection with
the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of
the Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies
thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery
of the Shares to the Underwriters, including any transfer or other taxes
payable thereon, (iii) the cost of printing or producing any Blue Sky or
Legal Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws
as provided in Section 6(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or
Legal Investment memorandum, (iv) all filing fees and the reasonable fees
and disbursements of counsel to the Underwriters (such reasonable fees of
counsel, together with the reasonable fees and disbursements of counsel
incurred in connection with the Blue Sky memorandum and the qualification
of the Shares under state securities laws set forth in (iii), not to exceed
$10,000) incurred in connection with the review and qualification of the
offering of the Shares by the National Association of Securities Dealers,
Inc., (v) all costs and expenses incident to listing the Shares on the New
York Stock Exchange and the Pacific Exchange, (vi) the cost of printing
certificates representing the Shares, (vii) the costs and charges of any
transfer agent, registrar or depositary, (viii) the costs and expenses of
the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the Shares,
including, without limitation, expenses associated with the production of
road show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval of
the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, (ix) the document
production charges and expenses associated with printing this Agreement and
(x) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except as provided in
this Section, Section 7 entitled "Indemnity and Contribution", and the last
paragraph of Section 9 below, the Underwriters will pay all of their own
costs and expenses, including fees and disbursements of their counsel,
stock transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
18
7. Indemnity and Contribution. (a) The Company agrees to indemnify and hold
harmless each Underwriter, each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, and each affiliate of any Underwriter within the meaning of
Rule 405 under the Securities Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein; provided, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased Shares, or any person controlling such Underwriter, if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities, unless such failure is the result of noncompliance by the Company
with Section 6(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to Section 7(a) or 7(b), such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
19
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Morgan Stanley & Co. Incorporated, in the case of
parties indemnified pursuant to Section 7(a), and by the Company, in the case of
parties indemnified pursuant to Section 7(b). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b)
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 7(d)(i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand
20
in connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate Public
Offering Price of the Shares. The relative fault of the Company on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 7(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 7
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter, any person controlling any Underwriter or
any affiliate of any Underwriter or by or on behalf of the Company, its officers
or directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Shares.
21
8. Termination. The Underwriters may terminate this Agreement by notice
given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, the New York
Stock Exchange or the Nasdaq National Market, (ii) trading of any securities of
the Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a material disruption in securities settlement, payment or
clearance services in the United States shall have occurred, (iv) any moratorium
on commercial banking activities shall have been declared by Federal or New York
State authorities or (v) there shall have occurred any outbreak or escalation of
hostilities, or any change in financial markets or any calamity or crisis that,
in your judgment, is material and adverse and which, singly or together with any
other event specified in this clause (v), makes it, in your judgment,
impracticable or inadvisable to proceed with the offer, sale or delivery of the
Shares on the terms and in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
number of Shares without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares to
be purchased, and arrangements satisfactory to you and the Company for the
purchase of such Firm Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on an Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to
22
purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased on such Option Closing Date, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase the Additional Shares to be sold on such Option
Closing Date or (ii) purchase not less than the number of Additional Shares that
such non-defaulting Underwriters would have been obligated to purchase in the
absence of such default. Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder, but the Company shall then be under no
further liability to any Underwriter except as provided in Section 6(f) or
Section 7 hereof.
10. Counterparts. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
23
13. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to you, will be mailed or delivered to you at the
address above or, if sent to the Company, will be mailed or delivered to it at
1221 W. Idaho Street, Boise, Idaho 83702-5627, Attention: Thomas R. Saldin,
Esq., Senior Vice President, General Counsel and Secretary of the Company.
Very truly yours,
IDACORP, INC.
By: /s/ Darrel T. Anderson
----------------------
Name: Darrel T. Anderson
Title: Senior Vice President -
Administrative Services and
Chief Financial Officer
Accepted as of the date hereof
Morgan Stanley & Co. Incorporated
Acting severally on behalf of themselves and
the several Underwriters named in
Schedule I hereto.
By: Morgan Stanley & Co. Incorporated
By: /s/ Timothy R. Schwarz
----------------------
Name: Timothy R. Schwarz
Title: Executive Director
24
SCHEDULE I
- --------------------------------------------------------- ---------------------
Number of Firm Shares
Underwriter To Be Purchased
Morgan Stanley & Co. Incorporated........................ 1,400,000
Wachovia Capital Markets, LLC............................ 875,000
KeyBanc Capital Markets, a division of
McDonald Investments Inc................................. 700,000
A.G. Edwards & Sons, Inc................................. 350,000
D.A. Davidson & Co....................................... 175,000
---------------------
Total:.......................................... 3,500,000
25
EXHIBIT A
[FORM OF LOCK-UP LETTER]
December 9, 2004
Morgan Stanley & Co. Incorporated
As representative of the several Underwriters
named in Schedule I to the Underwriting Agreement,
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Dear Sirs and Mesdames:
The undersigned understands that Morgan Stanley & Co. Incorporated ("Morgan
Stanley") proposes to enter into an Underwriting Agreement (the "Underwriting
Agreement") on behalf of the several underwriters named in Schedule I thereto,
with IDACORP, Inc., an Idaho corporation (the "Company"), providing for the
public offering (the "Public Offering") by the several Underwriters, including
Morgan Stanley (the "Underwriters"), of 3,500,000 shares (the "Shares") of the
Common Stock, without par value, of the Company (the "Common Stock") and the
preferred share purchase rights attached thereto.
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Morgan Stanley on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 90 days after the date of the final prospectus supplement
and the accompanying prospectus relating to the Public Offering (the
"Prospectus"), (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or (2) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to
26
(a) transactions relating to shares of Common Stock or other securities acquired
in open market transactions after the completion of the Public Offering, (b)
transfers of shares of Common Stock or any security convertible into Common
Stock as a bona fide gift or for no consideration, (c) transfers of shares of
Common Stock to any trust for the direct or indirect benefit of the undersigned
or the immediate family of the undersigned or from any trust to a beneficiary of
such trust or (d) transfers of shares of Common Stock with the prior written
consent of Morgan Stanley on behalf of the Underwriters; provided that (i) in
case of any transfer pursuant to clauses (b) or (c), in each case each
transferee shall sign and deliver a lock-up letter substantially in the form of
hereof and (ii) in the case of any transfer pursuant to clause (c) such transfer
shall not involve a disposition for value. The undersigned also agrees and
consents to the entry of stop transfer instructions with the Company's transfer
agent and registrar against the transfer of the undersigned's shares of Common
Stock except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
27
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
-----------------------------------
(Name)
-----------------------------------
(Address)
28