Exhibit 7.2
STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into as of
the 16th day of April 2004, by and among XXX X. XXXXXXXX and XXXXX X. XXXXXXXX
whose address is 000 Xxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxx 00000 (Xxx X. Xxxxxxxx and
Xxxxx X. Xxxxxxxx, collectively, "Sellers"), and XXXXXXX X. XXXXXXX whose
address is 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000 ("Purchaser").
WITNESSETH
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WHEREAS, Sellers jointly own 302,030 shares of Energy West Incorporated, a
Montana corporation ("Energy West"); and
WHEREAS, Sellers desire to sell and Purchaser desires to purchase 302,030
shares of Energy West owned by Sellers.
NOW, THEREFORE, in consideration of the payments to be made by Purchaser to
Sellers, the mutual covenants and conditions hereof, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the hereto, intending to be legally bound, the parties agree as
follows:
1. PURCHASE OF STOCK; PAYMENT. Sellers will sell and Purchaser will
purchase 302,030 shares of common stock of Energy West owned by Sellers (the
"Shares"). The purchase price for the Shares shall be Three Million Twenty
Thousand Three Hundred Dollars ($3,020,300) (the "Purchase Price") payable in
cash at Closing (as defined herein).
2. METHOD OF PAYMENT. The method of payment shall be delivery versus
payment. At Closing, Sellers shall cause their broker to transfer the Shares to
DTC No. 0141, for further credit to Xxxxxxx X. Xxxxxxx, Account No. XXXX-XXXX
promptly following receipt of payment from Purchaser who shall have caused his
broker to wire transfer the Purchase Price prior to 1 o'clock PM Mountain
Daylight Time in immediately available funds to First Interstate Bank, 000 Xxxxx
00xx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000. ABA # 0929-01683 for the account of X.X.
Xxxxxxxx & Co. Account #XXXXXXX to the further credit of Xxx X. and Xxxxx X.
Xxxxxxxx Account #XXXXXXXX-X. In any event, Seller shall make and issue
instructions through its broker to DTC for the transfer of the Shares to the
Purchaser on the same calendar day the wire transfer of the Purchase Price is
sent by the Purchaser to the Sellers.
3. REPRESENTATIONS AND WARRANTIES OF SELLERS. Sellers hereby warrant and
represent:
(a) Sellers are the owners of the Shares, there are no restrictions
on transfer of the Shares, and such Shares are not subject to any
mortgage, pledge, encumbrance, security interest or other lien.
(b) Sellers are not a party to any agreement, written or oral,
creating rights in respect to the Shares in any third person or
relating to the voting of the Shares.
(c) There are no existing warrants, options, stock purchase
agreements, redemption agreements, restrictions of any nature
calls or rights to subscribe of any character relating to the
Shares.
(d) Upon Sellers' receipt of the full purchase price described in
Section 1, Seller will transfer all right, title and interest in
the Shares by effecting delivery of the Shares to Purchaser
pursuant to Section 2 free and clear of any liens or
encumbrances.
(e) This Agreement is a legal, valid and binding obligation of
Sellers. Sellers have the authority to enter this Agreement and
to perform their obligations under this Agreement. Sellers' sale
of the Shares will not violate any agreement that is binding on
Sellers.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants:
(a) Purchaser understand that the sale of the Shares is being
conducted as a private transaction in order to qualify for an
exemption from registration under Section 4 of the Securities Act
of 1933, as amended (the "Securities Act") and in reliance upon
the representations and warranties of the Purchaser contained
within this Agreement.
(b) Purchaser understands that the Shares cannot be resold unless
they are registered under the Securities Act or unless an
exemption from registration is available.
(c) Purchaser is an "accredited investor" as such term is defined in
Rule 501(a) of Regulation D under the Securities Act.
(d) Purchaser is acquiring the Shares as a principal, in good faith,
solely for his own account, for investment purposes only, and not
with a view toward the distribution or resale thereof.
(e) Purchaser is not purchasing the Shares as a result of or
subsequent to any advertisement, leaflet, article, notice or
other communication published in any newspaper, magazine or
similar media or broadcast over television or radio, or presented
at any seminar or meeting whose attendees had been invited by any
general solicitation or advertising.
(f) This Agreement is a legal, valid and binding obligation of
Purchaser. Purchaser has the authority to enter into this
Agreement and to perform his
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obligations under this Agreement. Purchaser's purchase of
the Shares will not violate any agreement that is binding on
Purchaser.
5. CLOSING. The Closing of this Agreement and the transactions
contemplated hereunder shall occur not later than April 16, 2004.
6. GENERAL PROVISIONS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and supersedes all prior agreements and understandings, oral and
written, between the parties hereto with respect to the subject
matter hereof.
(b) SECTIONS AND OTHER HEADINGS. The section and other headings
contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
(c) GOVERNING LAW. This Agreement, and all transactions contemplated
hereby, shall be governed by, construed and enforced in
accordance with the laws of the State of Ohio.
[Intentionally Left Blank]
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(j) COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which will be deemed an original for all purposes and all of
which will be collectively one agreement. Execution may be affected by
delivery of facsimiles of signature pages, followed by delivery of
originals of such pages.
IN WITNESS WHEREOF, this Agreement has bee executed by the parties hereto
on the date first above written.
SELLERS: PURCHASER:
/s/ Xxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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Xxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
