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Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
___________________________
ENERGY WEST, INCORPORATED
(Exact name of registrant as specified in its charter)
MONTANA 81-0141785
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1 First Avenue South, 1 River Park Tower
P.O. Box 2229
Great Falls, Montana 59403-2229
(406) 791-7500
(Address, zip code, and telephone number, including area code,
of registrants' principal executive offices)
Copy to:
John C. Allen, Esq. Bruce A. MacKenzie, Esq.
Corporate Counsel Dorsey & Whitney LLP
Energy West, Incorporated 507 Davidson Building
1 First Avenue South 8 Third Street North
Great Falls, Montana 59401 Great Falls, Montana 59401
(406) 791-7503 (406) 727-3632
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. /X/
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /__/
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. /__/
If this Form is a post effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. /__/
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. /__/
CALCULATION OF REGISTRATION FEE
_____________________________________________________________________________
Proposed Proposed
Maximum Maximum
Title of Each Amount Offering Aggregate Amount of
Class of Securities to be Price Offering Registration
to be Registered Registered Per Unit* Price* Fee
_____________________________________________________________________________
Common Stock 100,000 $9.00 $900,000 $273
($ .15 par value)
_____________________________________________________________________________
* Estimated solely for purposes of computing the registration fee and based
upon the average of the high and low sales prices for such common stock for
October 10, 1997 as reported on the National Association of Securities
Dealers Automated Quotation System/National Market System.
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PROSPECTUS
ENERGY WEST, INCORPORATED
DIVIDEND REINVESTMENT PLAN
Larry D. Geske
President and Chief Executive Officer
Dear Shareholder:
We are pleased to send you this Prospectus describing our Dividend
Reinvestment Plan (the "Plan") of Energy West, Incorporated (the "Company").
The Plan provides record holders of shares of the Company's common stock, $.15
par value (the "Common Stock"), with a simple and convenient method of investing
cash dividends in additional shares of Common Stock without payment of any
brokerage commission or service charge. Any holder of record of the Common
Stock is eligible to join the Plan.
Participants in the Plan may have cash dividends on all shares of Common
Stock registered in their names automatically reinvested in additional shares of
Common Stock. PARTIAL PARTICIPATION IN THE PLAN IS NOT PERMITTED.
Eligible shareholders who wish to participate may enroll in the Plan at any
time by completing the appropriate "authorization form" and returning it to:
Davidson Trust Co., Attn: Energy West, Incorporated Dividend Reinvestment Plan,
P.O. Box 2309, Great Falls, Montana 59403-2309. SHAREHOLDERS WHO ALREADY
PARTICIPATE IN THE PLAN NEED NOT RETURN AN AUTHORIZATION FORM TO CONTINUE
PARTICIPATING IN THE PLAN.
Shareholders not participating in the Plan will receive dividends as
declared by the Board of Directors by check.
This Prospectus relates to 100,000 shares of Common Stock registered for
sale under the Plan. Participants should retain this Prospectus for future
reference.
Sincerely,
Larry D. Geske
President & Chief Executive Officer
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is October 10, 1997
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 and, in accordance therewith, files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). Such reports, proxy statements and other information filed
by the Company can be inspected and copied at the public reference facilities of
the Commission at 450 Fifth Street, N.W., Washington, D.C., 20549 and at the
Commission's Regional Offices at Seven World Trade Center, New York, New York
10048; and 500 West Madison Street, 14th Floor, Chicago, Illinois 60661. Copies
of such materials can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street N.W., Washington, D.C. 20549, at prescribed
rates. In addition, the Common Stock is traded over the counter on The NASDAQ
Stock Market and reports, proxy statements and other information concerning the
Company can also be inspected at the offices of the National Association of
Securities Dealers, Inc., 1735 K Street N.W., Washington, D.C. 20006. The
Commission maintains a web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission; the address of this site is http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Company filed with the Commission are hereby
incorporated by reference in this Prospectus (File No. 0-14183):
(1) The Annual Report on Form 10-K for the fiscal year ended June 30, 1997.
(2) The Annual Report, as amended, on Form 10-KA Amendment 2 for the fiscal
year ended June 30, 1996, filed on July 8, 1997 and the Quarterly
Report, as amended, on Form 10-QA for the quarter ended March 31,
1997, filed on July 8, 1997.
(3) The description of the Company's capital stock contained in Item 1 of
the Company's registration statement on Form 8-A dated January 15,
1986 (incorporating by reference the description of the Company's
capital stock contained in the Company's Registration Statement on
Form S-1, File No. 33-1672).
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, as amended, subsequent to the date of
this Prospectus and prior to the termination of the offering of the Common Stock
shall be deemed to be incorporated by reference into this Prospectus and to be a
part
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hereof from the respective dates of filing of such documents. Any statement
contained herein or in a document all or part of which is incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide, without charge, to each person to whom a copy of
this Prospectus is delivered, upon written or oral request of such person, a
copy of any or all of the foregoing documents incorporated by reference herein,
other than exhibits to such documents, unless such exhibits shall have been
specifically incorporated by reference into such documents. Requests for such
copies should be directed to William J. Quast, Vice President, Energy West,
Incorporated, P.O. Box 2229, Great Falls, Montana 59403-2229, telephone (406)
791-7500.
THE COMPANY
The principal executive offices of the Company are located at 1 First Avenue
South, 1 River Park Tower, Mailing Address, P.O. Box 2229, Great Falls, Montana
59403-2229, and its telephone number is (406) 791-7500.
THE PLAN
The Plan was adopted by the Board of Directors of the Company on February
10, 1989 and amended by the Board of Directors as of October 10, 1997. The text
of the Plan, as amended, is contained in the following numbered questions and
answers:
PURPOSE
1. What is the purpose of the Plan?
The Plan provides holders of record of shares of Common Stock with a simple
and convenient way to reinvest all of their cash dividends in additional shares
of Common Stock, without payment of any brokerage commission or service charge.
To the extent that such additional shares of Common Stock are purchased from the
Company, the Company will receive additional funds needed for general corporate
purposes. See "Use of Proceeds" below.
ADVANTAGES
2. What are some of the advantages of the Plan?
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An eligible stockholder of record who wishes to participate in the Plan (a
"Participant") may have cash dividends on all shares of Common Stock registered
in the name of such Participant automatically reinvested. No commission or
service charge will be paid by a Participant in connection with purchases under
the Plan. Full investment of funds is possible under the Plan because fractions
of shares, as well as full shares, will be credited to Participants' accounts.
In addition, dividends on such fractions, as well as full shares, will be
reinvested in additional shares and such shares will be credited to
Participants' accounts. Participants can avoid the need for the safekeeping of
certificates for shares purchased and credited to their accounts under the Plan
through the free custodial service described in Paragraph No. 17 below. Regular
statements of accounts will provide simplified recordkeeping.
ADMINISTRATION
3. Who administers the Plan?
Davidson Trust Co. is the agent (the "Agent") for Participants in the Plan
and administers the Plan for Participants, keeps records, sends quarterly
statements of account to Participants and performs other duties relating to the
Plan. Common Stock purchased under the Plan ("Plan Shares") will be registered
in the name of the Agent (or its nominee), as agent for each Participant in the
Plan, and will be credited to the accounts of the respective Participants. As
record holder of the Plan Shares held in Participants' accounts under the Plan,
the Agent will receive dividends on all Plan Shares held on the dividend record
date, will credit such dividends to Participants' accounts on the basis of full
and fractional shares held in these accounts, and will automatically reinvest
such dividends in additional shares of Common Stock.
PARTICIPATION
4. Who is eligible to participate?
All holders of record of Common Stock are eligible to participate in the
Plan. If Common stock is currently registered in a shareholder's own name, the
shareholder may participate directly in the Plan. Beneficial owners whose
shares of Common Stock are registered in names other than their own (for
example, in the name of a broker or nominee shareholder) must either become
shareholders of record by having these shares transferred into their names or
make arrangements with their broker or nominee to participate on their behalf.
The Company has made arrangements with the Agent to facilitate reinvestment
of dividends under the Plan by record holders such as brokers and nominee
shareholders on behalf of beneficial owners. In such a case, however, the
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Agent will not maintain a Plan account for the broker or nominee shareholder
participating on behalf of a beneficial owner and dividend reinvestment will
occur only on a per-dividend basis. See Nos. 5 and 8 below.
5. How does a shareholder participate?
A record holder of Common Stock may join the Plan by completing an
Authorization Form accompanying this Prospectus and returning it to the Agent.
A postage-paid envelope is provided for this purpose. SHAREHOLDERS WHO HAVE
PREVIOUSLY JOINED THE PLAN NEED NOT COMPLETE AN ADDITIONAL AUTHORIZATION FORM TO
CONTINUE PARTICIPATING IN THE PLAN.
Broker and nominee shareholders may participate in the Plan on behalf of
beneficial owners by completing a Broker and Nominee Authorization Form and
returning it to the Agent and by sending written instructions to the Agent on an
Instruction Form not later than the fifth business day following the Record Date
(as defined below) for the payment of each dividend. See No. 8 below.
Authorization Forms, Broker and Nominee Authorization Forms and Instruction
Forms may be obtained, at any time, by request directed to Davidson Trust Co.,
Attn: Energy West, Incorporated Dividend Reinvestment Plan, P.O. Box 2309,
Great Falls, Montana 59403-2309.
6. When may a shareholder join the Plan?
A holder of Common Stock may join the Plan at any time. Once in the Plan,
such shareholder will remain a Participant until such shareholder discontinues
participation. However, the commencement of dividend reinvestment under the
Plan will depend upon the date on which the appropriate forms are received by
the Agent.
If an Authorization Form directing reinvestment of dividends is received by
the Agent prior to the Record Date (as hereinafter defined), that dividend will
be reinvested in shares of Common Stock for the shareholder on the related
dividend payment date. If the Authorization Form is received by the Agent on or
after the Record Date, that dividend will be paid in cash and reinvestment will
begin with the next dividend if such shareholder is still a shareholder of
record.
If the Agent receives a Broker and Nominee Authorization Form and
Instruction Form from a broker or nominee shareholder on or before the fifth
business day following the Record Date, the Agent will reinvest the dividend on
the shares designated on such form. The reinvestment of dividends will be
limited to the purchase of the largest number of whole shares that can be
purchased for each account designated on such form. Any funds remaining after
reinvestment will be
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remitted to the broker or nominee shareholder. A dividend check will be mailed
to the broker or nominee shareholder in the usual manner for all shares for
which reinvestment instructions are not received by the Agent.
If the Agent receives a Broker and Nominee Authorization Form and
Instruction Form after the fifth business day following such Record Date, no
dividends will be reinvested based on such forms. Standing instructions are not
permitted under this procedure.
7. When will dividends be reinvested?
Dividends on Common Stock will be reinvested as of the day on which a
dividend is paid, if such date is a business day, or, if such date is not a
business day, on the first business day immediately succeeding such date.
Common Stock dividend payment dates are ordinarily one of the last five days in
March, June, September and December, and the record dates for the determination
of such dividend payments are customarily around the thirteenth day of March,
June, September and December (each a "Record Date"). If dividends are
reinvested in shares purchased on the open market, however, the timing of actual
share purchases may occur after the dividend payment date. See No. 12 below.
8. What do the Authorization Form, Broker and Nominee Authorization Form and
Instruction Form provide?
The Authorization Form provides for the purchase of additional shares of
Common Stock through the reinvestment of dividends on all shares of Common Stock
held by a Participant. The Authorization Form further directs the Agent to
reinvest automatically any subsequent dividends on Plan Shares (both whole and
fractional) held in the Participant's Plan account.
Thus, under the Plan, dividends will be reinvested on a cumulative basis on
all shares of Common Stock designated in the Authorization Form and on all Plan
Shares held in a Participant's Plan account, until a Participant withdraws from
the Plan altogether, or until the Plan is terminated.
The Broker and Nominee Authorization Form, in connection with the
Instruction Form, provides a means whereby a broker or nominee may inform the
Agent each time the Company declares a cash dividend of the names of
participating beneficial owners and specify the number of shares of Common Stock
held with respect to each such beneficial owner. The Broker and Nominee
Authorization Form, therefore, unlike the Authorization Form, contemplates new
instructions to the Agent each time a dividend is declared. The Agent will
reinvest the dividend payable to each identified beneficial owner in as many
whole shares of Common Stock as can be purchased in accordance with the Plan.
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COSTS
9. What are the costs to a Participant in the Plan?
There are no expenses to Participants in connection with the purchases under
the Plan. All costs of administration of the Plan and any brokerage commission
or service charge incurred in connection with the purchase of shares on the open
market will be paid by the Company. However, if the Agent purchases Plan Shares
for a Participant's account on the open market, the Participant must include as
gross income that portion of any brokerage commission and service charge paid by
the Company which is attributable to that purchase. See "Income Tax
Consequences". In addition, if a Participant requests the Agent to sell his or
her Plan Shares, the Participant must pay any related brokerage commission,
service charge and applicable taxes. Although the Agent does not currently
anticipate a service charge in connection with the sale of Plan Shares, the
Agent has reserved the right to require that a reasonable transaction charge be
paid.
PURCHASES
10. What is the source of shares purchased under the Plan?
Plan Shares will be purchased, at the Company's discretion, either directly
from the Company or on the open market, or by any combination of the foregoing.
Shares purchased from the Company will be either authorized but unissued shares
of Common Stock or shares held in the treasury of the Company.
11. How will the number of shares purchased for Participant be determined?
Each Participant's account will be credited with that number of shares,
including fractions computed to three decimal places, equal to the total amount
to be reinvested on his behalf divided by the purchase price per share of the
Common Stock. The manner in which the Plan operates does not permit the Agent
to honor a request that a specific number of shares be purchased.
12. When and how will shares be purchased under the Plan?
Purchases from the Company of authorized but unissued shares or treasury
shares will be made on the relevant dividend payment date. Purchases on the
open market will begin on the dividend payment date and will be completed no
later than 30 days from such date except where completion at a later date is
necessary or advisable under any applicable federal securities laws. Such
purchases may be made in the over-the-counter market or by negotiated
transactions and may be subject to such terms with respect to price, delivery
and other terms as the Agent may agree to.
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Neither the Company nor any Participant shall have any authority or power to
direct the time or price at which shares may be purchased, or the selection of
the broker or dealer through or from whom purchases are to be made.
Participants become owners of shares purchased under the Plan as of the date of
purchase.
13. What will be the price to the Participant of shares purchased under the
Plan?
The price of the shares of Common Stock purchased under the Plan will be
100% of their market value determined on the basis of the "average price" for
such shares. In the case of purchases from the Company of authorized but
unissued shares or treasury shares, the average price will be determined by
averaging the high and low sales prices as reported on NASDAQ/National Market
System on such dividend payment date or, if the Common Stock shall not have been
traded on such dividend payment date, on the next preceding day on which it
shall have been traded. In the case of purchases of Common Stock on the open
market, the average price will be the weighted average purchase price of shares
purchased for the relevant dividend payment date.
PARTICIPANTS' ACCOUNTS AND REPORTS
14. What accounts will be maintained for each Participant?
The Agent will maintain an account for each Participant (other than a broker
or nominee shareholder participating on behalf of a beneficial owner). All
shares purchased for a Participant under the Plan will be credited to his or her
account and held for him or her. When certificates for shares are issued to a
Participant or shares are sold for a Participant's account pursuant to the Plan,
these shares will be withdrawn from his or her account.
15. What reports will be sent to Participants in the Plan?
Each Participant will receive a statement of his or her account following
each purchase of additional shares. These statements are a Participant's
continuing record of the cost of purchases and should be retained for income tax
purposes. In addition, each Participant will receive each revised Prospectus
for the Plan and copies of the same communications sent to all holders of Common
Stock, including the Company's quarterly reports to shareholders, the Annual
Report to Shareholders, the Notice of Annual Meeting and Proxy Statement. To
the extent required by the Internal Revenue Code of 1986, as amended (the
"Code"), the Company will also report annually to the Internal Revenue Service
and Participants the dividend income received by each Participant.
Broker and nominee shareholders participating in the Plan will receive from
the Agent a statement identifying each account designated for reinvestment and
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showing for each such account the number of shares so designated, the total
dividend paid, the number of shares purchased, the total cost of the shares, the
amount of uninvested dividends remaining, the fair market (taxable) value of the
shares and the total dividend reportable for Federal income tax purposes. With
the listing, the broker or nominee shareholder will receive separate stock
certificates registered in the name of the broker or nominee shareholder for the
shares purchased for each designated account and a check for the total
uninvested dividends.
DIVIDENDS ON FRACTIONAL SHARES
16. Will Participants be credited with dividends on fractions of shares held in
their Plan accounts?
Yes.
CERTIFICATES FOR SHARES
17. Will certificates be issued for shares of Common Stock purchased?
Certificates for Plan Shares purchased for a Participant's account normally
will not be issued to Participants. Plan Shares will be held in the name of the
Agent or its nominee. This service protects against the loss, theft or
destruction of the stock certificates evidencing Plan Shares. However,
certificates will be issued to any Participant upon specific written request.
See No. 18 below. The number of shares purchased for a Participant's account
under the Plan will be shown on his or her statement of account.
Broker and nominee shareholders participating in the Plan will receive on a
quarterly basis from the Agent, along with the listing showing transactions for
their accounts, separate stock certificates registered in the name of the broker
or nominee shareholder for the shares purchased for each designated account and
a check for the total uninvested dividends.
WITHDRAWAL OF SHARES IN PLAN ACCOUNTS
18. How and when may shares be withdrawn from the Plan?
Plan Shares credited to a Participant's account may be withdrawn by a
Participant by notifying the Agent in writing specifying the number of whole
shares to be withdrawn.
Certificates for whole shares of Common Stock so withdrawn will be issued to
and registered in the name of the Participant. In no case will certificates for
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fractional shares be issued. A cash payment will be made, upon request, for any
remaining fractional shares in a Participant's Plan account. The cash payment
will be based on the average of the high and low sales prices for the Common
Stock, as reported on NASDAQ/National Market System on the day the withdrawal
request is received.
19. Will dividends on shares withdrawn from the Plan continue to be reinvested?
Yes. Cash dividends will be reinvested on all shares of Common Stock
registered in the name of a Participant, until a Participant withdraws from the
Plan altogether, or until the Plan is terminated.
SALE OR TRANSFER OF SHARES
20. May shares in a Plan account be sold or pledged?
Upon the written request of a Participant, the Agent will sell any number of
whole shares credited to the Participant's account. The Participant will pay
any related brokerage commission, service charge and applicable taxes and will
receive the proceeds of the sale less these amounts.
No shares will be sold, however, between a Record Date and the dividend
payment date. For example, if the Record Date for the payment of a dividend is
March 13, all requests for sales received after March 13 will be held until
after the related dividend payment date.
Shares credited to the account of a Participant may not be pledged. A
Participant who wishes to pledge such shares must request that certificates for
such shares be issued in his or her name.
21. What happens when a Participant sells or transfers all of the shares of
Common Stock registered in the Participant's name?
If a Participant sells or transfers some or all of the shares of Common
Stock registered in his or her name, the Agent, at its discretion, may continue
to reinvest the dividends on the shares credited to the Participant's account
under the Plan, until notified in writing by the Participant that he or she
wishes to withdraw from the Plan, or may terminate the Participant's Plan
participation and sell all of the shares credited to his or her account. Upon
termination, the Agent will remit to the former Participant the proceeds from
any sale, less any related brokerage commission and applicable taxes, and
payment for any fractional shares.
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TERMINATION OF PARTICIPATION
22. How and when may a Participant terminate participation in the Plan?
A Participant may terminate participation in the Plan at any time by notice
in writing to the Agent; provided, however, that termination requests received
after the Record Date for a dividend will not be processed until after the
related dividend payment date.
If the termination request is received by the Agent prior to the Record Date
for a particular dividend, that dividend and all subsequent dividends upon
shares registered in the former Participant's name will be paid in cash.
If the termination request is received by the Agent either on the Record
Date for a particular dividend or between the Record Date and the related
dividend payment date, that dividend may be reinvested in additional shares of
Common Stock for the Participant's account. The Agent, in its sole discretion,
may either pay any such dividend in cash or reinvest it in Common Stock on
behalf of the terminating Participant. The request for termination will then be
processed as promptly as possible following the dividend payment date.
After termination, dividends will be paid to the shareholder in cash unless
and until the shareholder rejoins the Plan, which he or she may do at any time
by completing an Authorization Form and returning it to the Agent. See No. 5
above.
23. What happens when a Participant terminates participation in the Plan?
When a Participant terminates participation in the Plan, or upon termination
of the Plan by the Company, certificates for whole shares credited to the
Participant's account will be issued and a cash payment will be made for any
fraction of a share. The cash payment will be based on the average of the high
and low sales prices for the Common Stock, as reported on NASDAQ/National Market
System, on the day the withdrawal request is received or the date of
termination.
In the alternative, upon termination of participation in the Plan, a
Participant may request that all of the shares, both whole and fractional,
credited to the Participant's account in the Plan be sold. If the Participant
requests a sale, the sale will be made for the account of the Participant by the
Agent. The Participant will pay any related brokerage commission, service
charge and applicable taxes, and will receive the proceeds of the sale less
these amounts.
OTHER INFORMATION
24. How will a Participant's shares be voted at meetings of Shareholders?
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Participants will receive proxy cards covering all whole shares held,
including shares held directly and shares held under the Plan. If a proxy card
is returned properly signed and marked for voting, the shares covered will be
voted as marked. If a proxy card is returned properly signed, but without
instructions as to the manner shares are to be voted with respect to any item
thereon, the shares covered will be voted in accordance with the recommendations
of the Company's Board of Directors. If the proxy card is not returned, or if
it is returned unexecuted or improperly executed, the shares covered will not be
voted.
25. What happens if the Company issues a dividend payable in stock or declares a
stock split?
Any stock dividends or split shares payable in Common Stock on Plan Shares
will be credited pro rata to each Participant's account. Stock dividends or
split shares distributed on shares registered in a Participant's name will be
mailed directly to the Participant.
26. What is the responsibility of the Company and the Agent under the Plan?
The Company, and the Agent as administrator of the Plan, will not be liable
for any act done in good faith or for any good faith omission to act, including,
without limitation, any claim of liability arising out of failure to terminate a
Participant's Plan participation upon such Participant's death prior to receipt
of legally sufficient instructions with respect thereto, the prices at which
shares are purchased or sold for the Participant's account, the times when
purchases or sales are made or fluctuations in the market value of the Common
Stock.
A Participant's investment in shares held in a Plan account is no different
than an investment in directly-held shares. The Participant bears the risk of
loss and the benefit of gain from market price changes with respect to all
shares. Participants should recognize that neither the Company nor the Agent can
assure Participants of profits, or protect Participants against losses, on the
shares purchased under the Plan.
27. What provision is made for foreign shareholders subject to income tax
withholding?
In the case of those foreign shareholders who elect to have all of their
cash dividends reinvested and whose dividends are subject to United States
income tax withholding, the Agent will reinvest in shares of Common Stock an
amount equal to the dividends of such foreign Participants after the deduction
of withholding taxes which are generally equal to 30%, unless reduced by treaty.
However, if the Agent should receive in United States dollars from any foreign
Participant, in advance of the dividend payment date for any dividend, the
amount of his or her
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income tax to be withheld from that dividend, the Agent will invest the full
amount of that dividend.
28. May the Plan be changed or discontinued?
The Company reserves the right to suspend, modify or terminate the Plan at
any time and to interpret and regulate the Plan as it deems necessary or
desirable in connection with the operation of the Plan. All Participants will
receive notice of any suspension, modification or termination.
29. Where should correspondence regarding the Plan be directed?
All correspondence regarding the Plan should be addressed to:
Davidson Trust Co.
Energy West, Incorporated Dividend Reinvestment Plan
P.O. Box 2309
Great Falls, Montana 59403-2309
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INCOME TAX CONSEQUENCES
Reinvestment of Dividends. In general, Participants will receive the same
federal income tax treatment with respect to dividends on their shares as any
other holder of Common Stock. When the Agent acquires shares for a
Participant's account directly from the Company, the Participant must include in
gross income a dividend equal to the number of shares purchased with the
Participant's reinvested dividends multiplied by the fair market value of Common
Stock on the relevant dividend payment date. The Participant's basis in those
shares will also equal the fair market value of the shares on the relevant
dividend payment date.
Alternatively, when the Agent purchases Common Stock for a Participant's
account on the open market with reinvested dividends, a Participant must include
in gross income a dividend equal to the actual purchase price to the Agent of
the shares plus that portion of any brokerage commissions and service fees paid
by the Company which are attributable to the purchase of the Participant's
shares. The Participant's basis in Plan shares held for his or her account will
be equal to their purchase price plus allocable brokerage commissions and
service fees.
Dividend income realized by a Participant will ordinarily not be subject to
withholding of United States federal income tax. However, a backup withholding
tax at a rate of 20% may be made by reason of the events specified by Section
3406 of the Code and regulations promulgated thereunder which include failure of
a Participant to supply the Company or its agent with such Participant's
taxpayer identification number.
Reporting of Taxable Dividend Income. The Company will report the dividend
income to participants and to the IRS on Form 1099-Div. The brokerage
commission paid by the Company will be included as dividend income. When Plan
accounts are terminated and shares are sold through the Company, the Company
will also report the proceeds from the sale to terminated participants and to
the IRS on Form 1099-B.
Additional Information. The holding period for Plan Shares will begin the
day after the date the shares are acquired. Under current provisions of the
Code, the
14
<PAGE>
partial dividend exclusion available to individuals has been eliminated and, in
general, the corporate dividends-received deduction has been reduced to 70%.
Corporate stockholders also should be aware that the Code limits the
availability of the dividends-received deduction under various special rules,
including the situation where a holder of stock incurs indebtedness directly
attributable to such stock. For further information on a corporate
stockholder's eligibility for the dividends-received deduction, Participants
should consult with their own tax advisors.
A Participant will not realize any taxable income when he or she receives
certificates for whole shares credited to his or her account under the Plan,
either upon a request for such certificates or upon withdrawal from or
termination of the Plan. However, a Participant who receives, upon withdrawal
from or termination of the Plan, a cash payment for the sale of Plan shares held
for such Participant's account or for a fractional share then held in his or her
account will realize gain or loss measured by the difference between the amount
of the cash received and the Participant's basis in such share or fractional
share. Such gain or loss will be capital in character if such shares or
fractional shares are a capital asset in the hands of the Participant and will
be a long-term capital gain if the holding period therefor is more than 12
months. For further information as to tax consequences of participation in the
Plan, Participants should consult with their own tax advisors.
USE OF PROCEEDS
The Company has no basis for estimating the number of shares of Common Stock
that will ultimately be sold pursuant to the Plan or the prices at which such
shares will be sold. However, the Company proposes to use the net proceeds from
the sale of newly issued or treasury shares of Common Stock to provide funds for
general corporate purposes.
For additional information concerning the Company's business and the
financing thereof, see the Company's latest Annual Report on Form 10-K and other
documents incorporated by reference in this Prospectus.
EXPERTS
The consolidated financial statements of Energy West, Incorporated appearing
in the Company's Annual Report (Form 10-K) for the year ended June 30, 1997,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
15
<PAGE>
LEGAL MATTERS
The validity of the issuance of the Plan Shares offered hereby has been
passed upon by the Company by Dorsey & Whitney LLP, Minneapolis, Minnesota.
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
The Bylaws of the Company and the Montana Business Corporation Act provide
that the officers and directors of the Company and certain others shall be
indemnified for certain liabilities and costs incurred by them in connection
with the performance of their duties. This indemnification may include
indemnification for liabilities arising under the Securities Act of 1933, as
amended (the "Act").
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers or persons controlling the Company, pursuant to
the foregoing provisions or otherwise, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is therefore unenforceable.
16
<PAGE>
No person has been authorized to give any information or to make any
representation not contained in this Prospectus in connection with the offer
contained herein, and if given or made, such information or representation
must not be relied upon as having been authorized by the Company. This
Prospectus is neither an offer to sell or a solicitation of an offer to buy
any securities other than those specifically offered hereby, nor is it such
an offer or solicitation in any jurisdiction to any person to whom it is
unlawful to make such an offer or solicitation in such jurisdiction. Neither
the delivery of this Prospectus nor any sale hereunder, under any
circumstances, shall create any implication that information herein is correct
as of any time subsequent to the date hereof.
------------------------
TABLE OF CONTENTS
P R O S P E C T U S
- -------------------
AVAILABLE INFORMATION 2
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE 2
THE COMPANY 3
THE DIVIDEND REINVESTMENT PLAN 3
Purpose 3
Advantages 3
Administration 4
Participation 4
Costs 7
Purchases 7
Participants' Accounts
and Reports 8
Dividends on Fractional
Shares 9
Certificates for Shares 9
Withdrawal of Shares in
Plan Accounts 9
Sale or Transfer of
Shares 10
Termination of
Participation 11
Other Information 11
INCOME TAX CONSEQUENCES 14
USE OF PROCEEDS 15
EXPERTS 15
LEGAL MATTERS 16
INDEMNIFICATION FOR
SECURITIES ACT LIABILITIES 16
[LOGO]
-------------------------------
P R O S P E C T U S
--------------------------------
DIVIDEND REINVESTMENT PLAN
October 10, 1997
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
SEC registration fee $ 273
NASDAQ filing fee 0
Accountants' fees and expenses 2,000
Legal fees and expenses 15,000
Printing and engraving expenses 3,500
Blue Sky fees and expenses 3,500
Miscellaneous expenses 500
-------
Total $24,773
=======
All fees and expenses other than the SEC registration fee are estimated.
The expenses listed above will be paid by the Company.
Item 15. Indemnification of Directors and Officers
Reference is made to Sections 35-1-451 through 35-1-459 of the Montana
Business Corporation Act, which provide that a corporation may indemnify any
individual who was, is or is threatened to be made a named defendant in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of such corporation in which an individual was adjudged liable to the
corporation), and whether formal or informal, because such individual is or was
a director of the corporation or, while a director of the corporation, is or was
serving at the corporation's request as a director, officer, partner, trustee,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust employee, benefit plan or other enterprise. The indemnity may
include judgments, penalties, fines (including an excise tax assessed with
respect to an employee benefit), amounts paid in settlement and reasonable
expenses (including attorney's fees) incurred by such individual in connection
with such action, suit or proceeding if such individual conducted him or herself
in good faith and reasonably believed, in the case of conduct in an official
capacity with the corporation, that his or her conduct was in the corporation's
best interests, and, in all other cases, that his or her conduct was at least
not opposed to the corporation's best interests and if, in the case of any
criminal proceeding, such individual had no reasonable cause to believe his or
her conduct was unlawful. In addition, a Montana corporation may indemnify any
of its officers, employees and agents who are not directors to the same extent
as to a director and may also indemnity any officer, employee or agent who is
not a director to the extent, consistent with public policy, that may be
provided by the corporation's articles of incorporation, its by-laws, general or
specific action of its
II-1
<PAGE>
board of directors or contract.
Article VI, Section 6.1 of the Bylaws of the Company, as amended, provides
that the Company shall indemnify its officers and directors against certain
claims, liabilities and expenses arising out of any action, suit or proceeding
in which such individual is a party by reason of being an officer or director of
the Company, provided that such individual shall not be adjudged to have been
liable for actual negligence or misconduct in the performance of his or her
duties.
Article 8 of the Company's Amended Articles of Incorporation provides that
a director of the Company shall not be personally liable to the Company or its
shareholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Company or its shareholders, (ii) for acts or omissions that constitute willful
misconduct, recklessness or a knowing violation of law, (iii) under Section 35-
1-713 of the Montana Business Corporation Act, or (iv) for a transaction from
which the director derives an improper personal benefit.
The foregoing discussion is qualified in its entirety by reference to the
Montana Business Corporation Act, the Company's Amended Articles of
Incorporation, and the Company's Bylaws, as amended.
Item 16. Exhibits
--------
3.1 Restated Articles of Incorporation of the Company, as amended
(Incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-2, File No. 333-31907).
3.2 Bylaws of the Company, as amended (Incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form S-2,
File No. 333-31907).
5 Opinion of Counsel as to legality of Common Stock and Consent (filed
herewith).
23.1 Consent of Independent Auditors (filed herewith).
23.2 Consent of Counsel (included in Exhibit 5).
24 Powers of Attorney (filed herewith).
II-2
<PAGE>
Item 17. Undertakings
------------
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) For purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Great Falls, State of Montana, on the 10th day of
October, 1997.
ENERGY WEST, INCORPORATED
By /s/ Larry D. Geske
----------------------------
Larry D. Geske
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Name Title Date
- ---- ----- ----
/s/ Larry D. Geske
_____________________ President, Chief Executive October 10, 1997
Larry D. Geske Officer and Director
(Principal Executive Officer)
/s/ Edward J. Bernica
_____________________ Vice President, Chief Financial October 10, 1997
Edward J. Bernica Officer
(Principal Financial Officer)
/s/ William J. Quast
_____________________ Vice President, Treasurer, October 10, 1997
William J. Quast Controller, and Assistant
Secretary (Principal Accounting
Officer)
II-4
<PAGE>
Name Title Date
- ---- ------ -----
*
______________________ Director October 10, 1997
Ian B. Davidson
*
______________________ Director October 10, 1997
Thomas N. McGowen, Jr.
*
______________________ Director October 10, 1997
G. Montgomery Mitchell
*
______________________ Director October 10, 1997
David A. Flitner
*
______________________ Director October 10, 1997
Dean South
*
______________________ Director October 10, 1997
George Ruff
/s/ Larry D. Geske
*By_________________________
Larry D. Geske
Attorney-in-fact
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit Form of Filing
- ------- ---------------------- --------------
<C> <S> <C>
5 Opinion of Dorsey & Whitney LLP
regarding legality........................... Electronic Transmission
23.1 Consent of Ernst & Young LLP................. Electronic Transmission
23.2 Consent of Dorsey & Whitney LLP
(included in Exhibit 5 to this Registration
Statement)................................... Electronic Transmission
24 Power of Attorney............................ Electronic Transmission
</TABLE>
<PAGE>
EXHIBIT 5
[Letterhead of Dorsey & Whitney LLP]
Energy West, Incorporated
1 First Avenue South, 1 River Park Tower
P.O. Box 2229
Great Falls, Montana 59403-2229
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Energy West, Incorporated, a Montana
corporation (the "Company"), in connection with a Registration Statement on
Form S-3 (the "Registration Statement") relating to the sale by the Company
from time to time of up to 100,000 shares of Common Stock, $.15 par value, of
the Company (the "Shares") pursuant to the Energy West Incorporated Dividend
Reinvestment Plan (the "Plan").
We have examined such documents and have reviewed such questions of
law as we have considered necessary and appropriate for the purposes of the
opinions set forth below.
In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company, that such
parties had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company and of public officials. We have
also assumed that the Common Stock will be sold for a price per share not less
than the par value per share of the Common Stock.
Based on the foregoing, we are of the opinion that the Shares have
been duly authorized and, upon issuance, delivery and payment therefor in
accordance with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
Our opinions expressed above are limited to the Montana Business
Corporation Act.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and to the reference to our firm under the heading
"Legal Matters" in the Prospectus constituting part of the Registration
Statement.
Dated: October 10, 1997
Very truly yours,
/s/ Dorsey & Whitney LLP
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related prospectus of Energy West
Incorporated for the registration of 100,000 shares of its common stock and to
the incorporation by reference therein of our report dated August 21, 1997, with
respect to the consolidated financial statements and schedule of Energy West
Incorporated included in its Annual Report (Form 10-K) for the year ended June
30, 1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Denver, Colorado
October 14, 1997
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Larry D. Geske and Edward J.
Bernica, and each of them, his or her true and lawful attorneys-in-fact and
agents, each acting alone, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign a Registration Statement on Form S-3 of Energy West,
Incorporated, and any and all amendments thereto, including post-effective
amendments, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, each acting alone, full power and
authority to do and perform to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, each acting alone, or the substitutes for such attorneys-in-
fact and agents, may lawfully do or cause to be done by virtue hereof.
Signature Title Date
- --------- ------ -----
/s/ Larry D. Geske
_____________________________ President, Chief Executive October 10, 1997
Larry D. Geske Officer and Director
(Principal Executive Officer)
/s/ Edward J. Bernica
_____________________________ Vice President, Chief October 10, 1997
Edward J. Bernica Financial Officer
(Principal Financial Officer)
/s/ William J. Quast
_____________________________ Vice President, Treasurer October 10, 1997
William J. Quast Controller, and Assistant
Secretary (Principal Financial
and Accounting Officer)
/s/ Ian B. Davidson
_____________________________ Director October 10, 1997
Ian B. Davidson
/s/ Thomas N. McGown, Jr.
_____________________________ Director October 10, 1997
Thomas N. McGowen, Jr.
/s/ G. Montgomery Mitchell
_____________________________ Director October 10, 1997
G. Montgomery Mitchell
/s/ David A. Flitner
_____________________________ Director October 10, 1997
David A. Flitner
/s/ Dean South
_____________________________ Director October 10, 1997
Dean South
/s/ George Ruff
_____________________________ Director October 10, 1997
George Ruff
