EXHIBIT 7.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into on July 30,
2003, by and between TURKEY VULTURE FUND XIII, LTD., an Ohio limited liability
company (the "Fund") and J. XXXXXXX XXXXXX, a resident of the State of North
Carolina (collectively, the "Voting Stockholders").
WHEREAS, the Voting Stockholders own a total of 204,900 shares of
common stock, par value $0.15 per share (the "Common Stock"), of Energy West
Incorporated, a Montana corporation ("Energy West") (all shares of Common Stock
or any other shares of Energy West that may vote in an election of directors now
owned and which may hereafter be acquired by the Voting Stockholders prior to
the termination of this Agreement shall be referred to herein as the "Voting
Stock"); and
WHEREAS, the Voting Stockholders have nominated five directors to stand
for election at the 2003 Annual Meeting of Stockholders of Energy West;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree as follows:
ARTICLE 1
AGREEMENTS
1.1 Voting Agreement. Each of the Voting Stockholders hereby agrees
that during the time this Agreement is in effect and in the election of
directors of Energy West at the 2003 Annual Meeting of Stockholders, the Voting
Stockholders, so long as they hold any Voting Stock, shall vote or caused to be
voted all Voting Stock owned by them, or over which they have voting control (i)
in favor of the election of the following directors nominated by the Voting
Stockholders: Xxxxxxx X. Xxxxxxx, J. Xxxxxxx Xxxxxx, Xxxxxx X. Xxxxx, Xxxxxxxx
X. Xxxxx and Xxxxxx X. Xxxxxx, and (ii) against any action, proposal or
agreement that would result in any of the director nominees listed in this
Section 1.1 not being elected at the 2003 Annual Meeting of Stockholders.
1.2 Cumulative Voting. The Voting Stockholders hereby agree to exercise
their respective rights to cumulate votes for the director nominees listed in
Section 1.1 as directed by the Fund.
1.3 Filings with the Securities and Exchange Commission. The Voting
Stockholders hereby agree to assist in the preparation and filing of any
documents with the Securities and Exchange Commission, as is necessary to comply
with the terms of this Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Each of the Voting Stockholders hereby represent and warrant as
follows:
2.1 Authority Relative to this Agreement. Each of them has all
necessary power and authority or capacity, as the case may be, to execute and
deliver this Agreement, to perform his or its obligations hereunder and to
consummate the transaction contemplated hereby. This Agreement has been duly and
validly executed and delivered by the Voting Stockholders and constitutes a
legal, valid and binding obligation of them, enforceable against the Voting
Stockholders in accordance with its terms.
2.2 No Conflict. The execution and delivery of this Agreement by the
Voting Stockholders do not, and the performance of this Agreement by them will
not (i) conflict with or violate any law, rule, regulation, order, judgment or
decree applicable to them or by which the Voting Stock are bound, or (ii) result
in any breach of or constitute a default (or event that with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the Voting Stock pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which any such Voting
Stockholder is a party or by which any such Voting Stockholder or any Voting
Stock are bound, except, in the case of clauses (i) and (ii), for any such
conflicts, violations, breaches, defaults or other occurrences which would not
prevent or delay the performance by any Voting Stockholder of his or its
obligations under this Agreement.
2.3 Title to the Voting Stock. Each Voting Stockholder is the owner of
the number and class of Voting Stock specified on Exhibit A hereto, free and
clear of all security interests, liens, claims, pledges, options, rights of
first refusal, agreements, limitations on voting rights, charges and other
encumbrances of any nature whatsoever except as otherwise specified on Exhibit
A. No Voting Stockholder has appointed or granted any proxy, which appointment
or grant is still effective, with respect to the Voting Stock. Each Voting
Stockholder has sole voting power with respect to his or its Voting Stock except
as otherwise specified on Exhibit A.
ARTICLE 3
MISCELLANEOUS
3.1 Termination. This Agreement shall terminate on the earlier of (i)
the date following the election of directors at the 2003 Annual Meeting of
Stockholders of Energy West or any adjournment thereof, or (ii) by mutual
agreement of all the parties.
3.2 Specific Performance. In addition to any and all other remedies
that may be available at law in the event of any breach of this Agreement, each
of the parties to this Agreement shall be entitled to specific performance of
the agreements and obligations of the other parties hereunder and to such other
injunctive relief or other equitable relief as may be granted by a court of
competent jurisdiction.
3.3 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings with
respect to the subject matter hereof.
3.4 Amendment. This Agreement may not be amended except by an
instrument in writing signed by all the parties hereto.
3.5 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
3.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of Ohio.
3.7 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which shall constitute
one and the same agreement.
3.8 Assignments. This Agreement shall not be assigned by operation of
law or otherwise.
3.9 Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
2
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day first written above.
"VOTING STOCKHOLDERS"
TURKEY VULTURE FUND XIII, LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Sole Manager
/s/ J. Xxxxxxx Xxxxxx
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J. XXXXXXX XXXXXX
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EXHIBIT A
NAME COMMON SHARES
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Turkey Vulture Fund XIII, Ltd. 127,900
J. Xxxxxxx Xxxxxx 77,000
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Total: 204,900
