Exhibit 7.2
AGREEMENT
AGREEMENT, between and among the J. Xxxxxxx Xxxxxx, Xxxxxxxx X. Xxxxx,
Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx (collectively, the "Committee"), Turkey
Vulture Fund XIII, Ltd., an Ohio limited liability company (the "Fund"), and
Energy West, Incorporated, a Montana corporation (the "Company").
The parties hereby agree as follows:
1. The Company shall reschedule the 2003 Annual Meeting of Shareholders (the
"Annual Meeting") from November 24, 2003 to December 3, 2003.
2. As soon as practicable and no later than November 25, 2003, the Company shall
file additional proxy materials with the Securities and Exchange Commission
disclosing that (i) the meeting date has been rescheduled for December 3, 2003,
(ii) the termination of the Committee's solicitation for proxies in opposition
to the Company's slate of director nominees from the shareholders of the
Company, (iii) the dismissal of the lawsuit described in Section 9, (iv) the
Committee will not be voting the shares held by the members of the Committee and
the Fund (collectively, the "Committee Shares") for the Committee's nominees at
the Annual Meeting, (v) the Committee will not nominate any person for election
to the board of directors of the Company at the Annual Meeting, and (vi) the
Committee will not vote the Committee Shares at the Annual Meeting, and (vii)
that the Company encourages any person who has submitted a blue proxy card to
submit a white proxy card in favor of the Company's slate of directors. The
Company, the Committee and the Fund agree that none of them shall take any
action inconsistent with the matters set forth in this paragraph 2.
The Committee and the Fund hereby agree to obtain the advance consent of the
Company with respect to all materials relating to the Annual Meeting
disseminated to the public after the date hereof. The Company hereby agrees to
obtain the advance consent of the Committee and the Fund with respect to the
portion of all materials relating to the Annual Meeting disseminated to the
public after the date hereof involving any of the matters set forth in the
immediately preceding paragraph, Messrs. Xxxxx or Xxxxxxx as nominees to the
board of directors, the Committee or the proxy solicitation initiated by the
Committee.
3. The Company shall not change its slate of directors as proposed in the
Company's October 9, 2003 proxy materials; provided, however, the Company agrees
to cause Xx. Xxxxxx Xxxx, a current member of the Company's board of directors,
to submit his resignation effective immediately following the conclusion of the
Annual Meeting. The Company shall not submit any matter other than the election
of directors for consideration by the shareholders at the Annual Meeting.
4. Immediately following the conclusion of the Annual Meeting and prior to the
consideration of any other business by the board of directors, the Company shall
expand its board of directors to nine members in accordance with the Company's
by-laws and shall appoint Xx. Xxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxx and Xxxxxxx X.
Xxxxxxx as members of the Company's board of directors. If Xx. Xxxxxxxx is
unwilling or unable to accept the appointment
to the Board of Directors, the Committee, the Fund and the Company shall be
entitled to appoint a substitute nominee mutually acceptable to all parties
hereto, and the Company shall cause such nominee to be appointed to the
Company's board of directors.
5. In the event that any time during their terms expiring no later than the date
of the Company's annual meeting of shareholders to be held in 2004, either Xx.
Xxxxx or Xx. Xxxxxxx is unable to serve as a director, whether because of
resignation, removal or otherwise, the Committee and the Fund shall be entitled
to appoint substitute nominees who are reasonably qualified, as determined by
the board of directors of the Company acting in good faith, and the Company
shall cause such nominees to be appointed to the Company's board of directors.
In the event that Xx. Xxxxxxxx is unable or unwilling to serve as a director
during his term expiring no later than the date of the Company's annual meeting
of shareholders to be held in 2004, the Committee, the Fund and the Company
shall be entitled to appoint a substitute nominee mutually acceptable to all
parties and the Company shall cause such nominee to be appointed to the
Company's board of directors.
6. As soon as practicable after the execution of this Agreement but in no event
later than the close of business on November 21, 2003, the Committee will
jointly with the Company, issue a press release setting forth the matters
described in Section 2(i) through 2(vii). The Committee and the Company shall
mutually agree upon the press release. Subject to the last paragraph of Section
2, the Company shall announce the settlement on Form 8-K and shall file the
mutually agreed upon press release as an exhibit to the Form 8-K. Other than as
set forth in Section 2 and 6, none of the Company, the Fund or the Committee
shall, and the Company, the Fund and the Committee shall cause its or their
representatives, attorneys and agents not to, publicly disseminate any documents
or materials regarding the Annual Meeting, the election of directors at the
Annual Meeting or the dismissal of the lawsuit described in Section 9.
7. Neither the Committee nor the Fund, nor any affiliate or associate (as such
terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended (the "1934 Act")) of the Committee or the Fund, shall nominate any
candidate for election to the board of directors at the Annual Meeting, or vote
its or his shares of common stock of the Company, par value $0.15 per share (the
"Common Stock"), in opposition to the Company's slate of director nominees by
any means (including without limitation pursuant to any previously solicited
proxy) at the Annual Meeting. Other than the immediately preceding sentence and
the limitations contained in Section 8C of this Agreement, there shall be no
limitations on the voting rights with respect to the Common Stock on any member
of the Committee or the Fund.
8. A. The Company will promptly withdraw its Form U-1 filed with the Commission
on September 23, 2003 (and in any event no later than December 2, 2003), and
will disclose its agreement to effect such withdrawal on the Form 8-K described
in Section 6 above. The Company will provide the Fund with the opportunity to
comment on any such disclosure prior to its filing with the Securities and
Exchange Commission.
B. The Company will provide notice to the Committee and the Fund no
less than 30 days before the deadline for notice under the Company's bylaws by
shareholders of intent to nominate candidates for election to the board of
directors at the 2004 annual meeting of
shareholders of the Company, if the board of directors does not intend to
nominate Xx. Xxxxx or Xx. Xxxxxxx for reelection at the 2004 annual meeting.
C. Neither the Committee nor the Fund, nor any of affiliate or
associate (as such terms are previously defined) of any member of the Committee
or the Fund, will, and will not assist or encourage others (including by
providing financing) to, directly or indirectly, for a period beginning on the
date hereof and ending on the date of the Company's annual meeting of
shareholders to be held in 2004 (individually or as a part of any group (within
the meaning of Section 13(d)(3) of the 1934 Act)): (i) nominate any person for
election to the Company's board of directors, (ii) engage in any "solicitation"
of "proxies" (as such terms are used in the proxy rules promulgated under the
1934 Act, but disregarding clause (iv) of Rule 14a-1(l)(2) and including any
exempt solicitation pursuant to Rule 14a-2(b)(1) or (2)), or (iii) enter into
any discussions, negotiations, agreements, arrangements or understandings with
any third party with respect to any of the foregoing. At the annual meeting of
shareholders of the Company to be held in 2004, the Committee and the Fund
shall, and shall cause all affiliates and associates of any member of the
Committee and the Fund to, vote for the Company's slate of directors proposed
for election at such meeting.
D. Notwithstanding the foregoing, the provisions of Section 8C shall
terminate in the event that (a) the Company provides notice to the Committee and
the Fund pursuant to the first sentence of Section 8B that it does not intend to
nominate Messrs. Xxxxx and Xxxxxxx, or their successors, for reelection to the
board of directors at the 2004 annual meeting of shareholders, (b) the Company
fails to provides notice by the required time to the Committee and the Fund
pursuant to the first sentence of Section 8B that it intends to nominate Messrs.
Xxxxx and Xxxxxxx, or their successors, for reelection to the board of directors
at the 2004 annual meeting of shareholders, or (c) the Company implements a
classified board of directors prior to its 2004 Annual Meeting of Shareholders.
E. The provisions of Section 8C shall not bar the Committee or the Fund
from soliciting proxies in opposition to matters, other than election of
directors at the 2004 annual meeting of shareholders, that the board of
directors approves over the objection of Messrs. Xxxxxxx or Xxxxx or either of
their replacements for submission to a vote of the shareholders.
9. The Fund and the Company agree to dismiss, with prejudice, all of their
claims in the lawsuit styled Turkey Vulture Fund XIII, Ltd. v. Energy West,
Incorporated, et al., Cause No. DDV-03-1214.
10. Each party agrees to bear its own expenses in connection with the proxy
solicitations by the parties prior to the date hereof, and the lawsuit referred
to in Section 9.
11. Any terms or provisions of this Agreement may be waived in writing at any
time by the party that is entitled to the benefits thereof. The failure of any
party at any time or times to require performance of any provision hereof shall
in no manner affect such party's right at a later time to enforce the same. No
waiver by any party of a condition or of the breach of any term, contained in
this Agreement, whether by conduct or otherwise, in any one or more instances
shall be deemed to be or construed as a further or continuing waiver of any such
condition or breach or a waiver of any other condition or of the breach of any
other term of this Agreement.
12. All notices or other communications required, permitted or desired to be
given hereunder shall be deemed to have been duly given if delivered in writing
by hand delivery, overnight courier or mailed by certified mail, or by facsimile
with confirmation, and addressed as follows:
If to the Committee or the Fund: Turkey Vulture Fund XIII, Ltd.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
With a copy to: Xxxxxxx Xxxxxxx & Xxxxxx P.L.L.
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Facsimile: 000-000-0000
If to the Company: Energy West, Incorporated
Xx. 0 Xxxxx Xxxxxx Xxxxx, X.X. Xxx 0000
Great Falls, Montana 59403
Attn: Xxxx X. Xxxxx
Facsimile: 406-791-7560
With a copy to: Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Facsimile: 000-000-0000
Any party may change its address for receiving notice by giving notice of a new
address in the manner provided herein. Any notice so given, shall be deemed to
be delivered on the third business day after the same is deposited in the United
States mail, on the next business day if sent by overnight courier or sent by
facsimile after the close of business, or on the same business day if sent by
facsimile before the close of business.
13. Nothing in this Agreement, whether express or implied, is intended to confer
any rights or remedies under or by reason of this Agreement on any persons other
than the parties to it and their respective successors and assigns.
14. This Agreement is binding upon and shall inure to the benefit of the parties
and their respective successors and assigns. For avoidance of doubt, references
herein to the "Committee"
shall mean and include the Committee as a whole and each of J. Xxxxxxx Xxxxxx,
Xxxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxx.
15. The parties may amend or modify this Agreement in a writing duly executed in
the same manner as this Agreement.
16. This Agreement shall be governed by and construed in accordance with the
laws of the State of Montana.
17. This Agreement contains the entire agreement between the parties hereto with
respect to the transactions contemplated herein and supercede any prior oral
agreements of the parties relating to the transactions contemplated herein.
18. This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. Any counterpart signature page delivered by facsimile
transmission shall be deemed to be and have the same force and effect as an
originally executed signature page.
19. This Agreement shall be effective upon the delivery of counterparts as set
forth in Section 18 by the Company, the Fund and Xxxxxxx X. Xxxxxxx; provided
that the Fund and Xx. Xxxxxxx shall cause J. Xxxxxxx Xxxxxx, Xxxxxxxx X. Xxxxx,
and Xxxxxx X. Xxxxx to execute and deliver counterparts of this Agreement as
parties thereto as soon as practicable and in any event no later than December
2, 2003; provided that in the event that such individuals or their duly
authorized representatives shall not have executed and delivered this Agreement
on or before December 2, 2003, the Company shall not have any further
obligations under this Agreement.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the 20th day of November, 2003.
Energy West, Incorporated
By:/s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Interim President and CEO
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Turkey Vulture Fund XIII, Ltd.
By:/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Sole Manager
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ J. Xxxxxxx Xxxxxx
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J. Xxxxxxx Xxxxxx
/s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
