-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LRik5rxaYPMdYsHhezK8MYu65wVScJ+y13TPkL+i2wJbTkgPSU/omyd6COL+5cZX aBuPYCzgD/u9TmJg1vwGcg== 0000950152-03-007277.txt : 20030801 0000950152-03-007277.hdr.sgml : 20030801 20030801164219 ACCESSION NUMBER: 0000950152-03-007277 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20030801 GROUP MEMBERS: J. MICHAEL GORMAN SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ENERGY WEST INC CENTRAL INDEX KEY: 0000043350 STANDARD INDUSTRIAL CLASSIFICATION: NATURAL GAS DISTRIBUTION [4924] IRS NUMBER: 810141785 STATE OF INCORPORATION: MT FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-38350 FILM NUMBER: 03818506 BUSINESS ADDRESS: STREET 1: 1 FIRST AVE SOUTH STREET 2: PO BOX 2229 CITY: GREAT FALLS STATE: MT ZIP: 59401 BUSINESS PHONE: 4067917500 MAIL ADDRESS: STREET 1: ENERGY WEST INC STREET 2: 1 FIRST AVE SOUTH PO BOX 2229 CITY: GREAT FALLS STATE: MT ZIP: 59401 FORMER COMPANY: FORMER CONFORMED NAME: GREAT FALLS GAS CO DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TURKEY VULTURE FUND XIII LTD CENTRAL INDEX KEY: 0000935886 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 7001 CENTER STREET CITY: MENTOR STATE: OH ZIP: 44060 BUSINESS PHONE: 2169511111 MAIL ADDRESS: STREET 1: 7001 CENTER ST STREET 2: 7001 CENTER ST CITY: MENTOR STATE: OH ZIP: 44060 SC 13D/A 1 l02479asc13dza.txt TURKEY VULTURE FUND XIII/ENERGY WEST SC 13D/A SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13D-1(a) AND AMENDMENTS THERETO FILED PURSUANT RULE 13D-2(a) (Amendment No. 1) Energy West Incorporated - ------------------------------------------------------------------------------- (Name of Issuer) Common Stock - ------------------------------------------------------------------------------- (Title of Class of Securities) 29274A-10-5 - ------------------------------------------------------------------------------- (CUSIP Number) Marc C. Krantz, Kohrman Jackson & Krantz P.L.L., 1375 East 9th Street, 20th Fl., Cleveland, OH 44114, (216) 696-8700 - ------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) July 30, 2003 - ------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box: [ ] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). Page 1 of 6 SCHEDULE 13D CUSIP NO. 29274A-10-5 Page 2 of 6 - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Turkey Vulture Fund XIII, Ltd. - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) [ X ] ----- (B) [ ] ----- - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] ----- - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America - ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 131,000 BENEFICIALLY ----------------------------------------- 8 SHARED VOTING POWER OWNED BY ----------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 131,000 ----------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 131,000 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] ---- - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.0% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - ------------------------------------------------------------------------------- SCHEDULE 13D CUSIP NO. 29274A-10-5 Page 3 of 6 - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON J. Michael Gorman - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) [ X ] ----- (B) [ ] ----- - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS PF - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] ----- - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America - ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 77,000 BENEFICIALLY ----------------------------------------- 8 SHARED VOTING POWER OWNED BY EACH ----------------------------------------- 9 SOLE DISPOSITIVE POWER REPORTING 77,000 PERSON ----------------------------------------- 10 SHARED DISPOSITIVE POWER WITH - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 77,000 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] ----- - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.0% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - ------------------------------------------------------------------------------- CUSIP NO. 29274A-10-5 This Amendment No. 1 to Schedule 13D is filed on behalf of Turkey Vulture Fund XIII, Ltd., an Ohio limited liability company (the "Fund") of which Richard M. Osborne is the sole Manager, and J. Michael Gorman to report: (i) acquisitions of shares of common stock, par value $0.15 per share (the "Shares"), of Energy West Incorporated, a Montana corporation ("Energy West"); (ii) the Fund's delivery of notice to Energy West to nominate individuals for election to the Board of Directors of Energy West and (iii) the Fund's intention to request a copy of the list of stockholders of Energy West pursuant to the requirements of the Montana Business Corporation Act. This Amendment No. 1 to Schedule 13D is not and should not be deemed to be a solicitation of proxies or consents with respect to any meeting of Energy West's stockholders for the election of directors. Any such solicitation by the Fund would be made only pursuant to separate proxy or solicitation materials complying with all applicable requirements of Section 14(a) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Item 3 of Schedule 13D is amended and supplemented as follows: The Shares reported herein as having been acquired by the Fund were acquired for the aggregate purchase price of approximately $36,585 (excluding commissions) with margin debt from Wachovia Securities. The Shares reported herein as having been acquired by Mr. Gorman were acquired for the aggregate purchase price of approximately $42,000 (excluding commissions) with personal funds of Mr. Gorman. ITEM 4. PURPOSE OF TRANSACTION. Item 4 of Schedule 13D is amended and supplemented as follows: The Fund delivered a letter to Energy West, dated July 30, 2003, nominating the following individuals for election to the Board of Directors of Energy West at the 2003 Annual Meeting of Stockholders (the "Annual Meeting"): J. Michael Gorman, Hobart H. Griset, Lawrence P. Haren, Richard M. Osborne and Thomas J. Smith (collectively, the "Director Nominees"). The director nomination letter was submitted by August 1, 2003 in accordance with the requirements of Section 2.2 of Article II of Energy West's By Laws. Pursuant to the requirements of the Montana Business Corporation Act, the Fund intends to request a copy of the list of stockholders of Energy West. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Items 5(a) and 5(c) of Schedule 13D are amended and supplemented as follows: (a) According to the most recently available filing with the Securities and Exchange Commission by Energy West, there are 2,594,258 Shares outstanding. The Fund beneficially owns 131,000 Shares, or approximately 5.0% of the outstanding Shares. As sole Manager of the Fund, Mr. Osborne may be deemed to beneficially own all Shares held by the Fund. Mr. Gorman beneficially owns 77,000 shares, or approximately 3.0% Page 4 of 6 CUSIP NO. 29274A-10-5 of the outstanding Shares. The Fund and Mr. Osborne disclaim beneficial ownership of the Shares held by Mr. Gorman. Mr. Gorman disclaims beneficial ownership of the Shares held by the Fund and Mr. Osborne. (c) Since the filing of original Schedule 13D Statement dated June 18, 2003, the Fund has purchased 6,000 Shares in open market transactions as set forth below: Approximate Per Share Price Date Number of Shares (Excluding Commissions) ---- ---------------- ----------------------- 7/30/2003 1,000 $6.08 7/30/2003 1,900 $6.11 7/31/2003 1,900 $6.08 7/31/2003 1,200 $6.12 Since the filing of original Schedule 13D Statement, Mr. Gorman has purchased 7,000 Shares in open market transactions as set forth below: Approximate Per Share Price Date Number of Shares (Excluding Commissions) ---- ---------------- ----------------------- 7/24/2003 7,000 $6.00 ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. On July 30, 2003, the Fund and Mr. Gorman entered into a Voting Agreement with respect to their ownership of Shares. The Fund and Mr. Gorman have agreed to vote in favor of the Director Nominees at the Annual Meeting and against any action, proposal or agreement that would result in the Director Nominees not being elected at the Annual Meeting. The Voting Agreement expires on the date following the election of directors at the Annual Meeting or any adjournment thereof or by mutual agreement of all the parties. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. 7.1 Joint Filing Agreement, incorporated by reference to Exhibit 7.1 to Schedule 13D Statement, dated June 18, 2003, filed on behalf of the Turkey Vulture Fund XIII, Ltd. and J. Michael Gorman 7.2 Voting Agreement, dated July 30, 2003, between Turkey Vulture Fund XIII, Ltd. and J. Michael Gorman Page 5 of 6 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: August 1, 2003 TURKEY VULTURE FUND XIII, LTD. /s/ Richard M. Osborne ------------------------------ Richard M. Osborne, Manager /s/ J. Michael Gorman ------------------------------ J. Michael Gorman Page 6 of 6 EX-7.2 3 l02479aexv7w2.txt EXHIBIT 7.2 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. MICHAEL GORMAN, 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: Richard M. Osborne, J. Michael Gorman, Thomas J. Smith, Lawrence P. Haren and Hobart H. Griset, 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/ Richard M. Osborne --------------------------------- Richard M. Osborne, Sole Manager /s/ J. Michael Gorman - ------------------------------------ J. MICHAEL GORMAN 3 EXHIBIT A NAME COMMON SHARES ---- ------------- Turkey Vulture Fund XIII, Ltd. 127,900 J. Michael Gorman 77,000 -------- Total: 204,900 -----END PRIVACY-ENHANCED MESSAGE-----