exv10w5



 




Exhibit 10.5


AMENDMENT No. 1

TO

STOCK PURCHASE AGREEMENT




     This Amendment No. 1 (“Amendment”) to that Stock Purchase Agreement (the
“Agreement”) entered into as of the 30th day of January, 2007, by and between SEMPRA
ENERGY, a corporation incorporated under the laws of the State of California, USA
(“Seller”), and Energy West Incorporated, a corporation incorporated under the laws of the
State of Montana, USA (“Purchaser”), is entered into as of August 2, 2007 by and between
Seller and Purchaser. Any capitalized term used but not defined herein shall have the same meaning
as in the Agreement.



RECITALS




     A. The parties hereto (or their predecessors in interest) have entered into the Agreement
whereby Seller has agreed to sell and Purchaser has agreed to purchase all of the issued and
outstanding capital stock of Frontier Utilities of North Carolina, Inc., excluding the Excluded
Assets and Liabilities, pursuant to the terms and conditions of the Agreement.



     B. The parties hereto desire to amend the Agreement to provide that the Purchase Price shall
be increased on a dollar-for-dollar basis by the amount of any capital contributed by the Seller in
cash to the Company or the Subsidiary to fund a capital project, whether undertaken outside in the
Ordinary Course of Business or otherwise, that has been approved in writing (which writing shall
include a description of the proposed capital project and the amount of capital to be contributed
by Seller) by Purchaser.



     NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained and
for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:



AGREEMENT




     1. Conduct of the Business of the Company and the Subsidiary Prior to Closing.
Section 3.2 of the Agreement is hereby amended as follows:




(a) by inserting the section number “3.2.1.” immediately before the first full paragraph
of Section 3.2 which begins with the words “Except with the prior written consent of
Purchaser (which consent shall not be unreasonably withheld, delayed
or conditioned) . . .”; and




(b) by inserting immediately after what will after the amendment above be Section 3.2.1.
(q), a new paragraph to read as follows:



 









 






     “3.2.2. Seller and Purchaser acknowledge and agree that it may become necessary or
advisable prior to the Closing for the Company or the Subsidiary to undertake a capital
project, outside in the Ordinary Course of Business or otherwise, that requires Seller to
contribute capital to the Company or the Subsidiary in cash over and above the normal and
ordinary capital requirements of the Company or Subsidiary (such project a “Proposed
Capital Investment,” and such amount, a “Project Capital Contribution”). Prior
to making any Project Capital Contribution, Seller shall inform Buyer in writing describing
the nature of the Proposed Capital Investment and the proposed amount of the Project
Capital Contribution. Promptly after the receipt of such notice Buyer shall either consent
to the Seller undertaking the Proposed Capital Investment and providing the Project Capital
Contribution or provide notice to the Seller that Buyer does not so consent. The amount of
any Project Capital Contribution approved by Buyer in writing shall be added to the
Preliminary Purchase Price as provided in Section 2.2.2. For purposes of this
subsection, a Proposed Capital Investment shall include only those capital expenditures of
the Company or Subsidiary which are incurred outside the Ordinary Course of Business and
approved by Purchaser in writing prior to such expenditure being incurred. This Section
shall not be construed to require an increase in the Purchase Price for capital
contributions or expenditures made by Seller in the Ordinary Course of Business.”



     2. Payment of the Purchase Price. Section 2.2.2. of the Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:




     “2.2.2. Upon the terms and subject to the conditions hereinafter set forth, in
consideration of the delivery by Seller of the Purchased Shares, Purchaser shall pay to
Seller at the Closing an amount equal to the sum of (i) Four Million Five Hundred Thousand
Dollars ($4,500,000), and (ii) the amount of any Project Capital Contribution approved by
the Buyer in writing under Section 3.2.2. (the “Preliminary Purchase
Price”), in cash by wire transfer of immediately available U.S. federal funds.”



     3. Definitions. Section 1.1 of the Agreement is hereby amended by adding thereto in
the appropriate location alphabetically the following definitions:




     “‘Project Capital Contribution’ has the meaning set forth in Section
3.2.2.”




     “‘Proposed Capital Investment’ has the meaning set forth in Section
3.2.2.”



     4. Effect of Amendment. The Agreement is hereby ratified and confirmed in all
respects, and all terms, conditions and provisions of the Agreement, except as amended by this
Amendment, shall remain in full force and effect.



     5. Governing Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of New York, without regards to the principles of



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conflicts of laws thereof other than Sections 5-1401 and 5-1402 of the New York General Obligations
Law.



     6. Counterparts. This Amendment may be executed in any number of counterparts, and
each such counterpart shall for all purposes be deemed an original, and all such counterparts shall
together constitute but one and the same Amendment.



     7. Effective Date. This Amendment is made effective as of the date hereof.



          IN WITNESS WHEREOF, the parties hereto have executed this Amendment, or caused this Amendment
to be duly executed by their respective authorized officers, as of the day and year first above
written.




	 	 	 	 	 
	 	Seller:





SEMPRA ENERGY

 	 
	 	By:  	/s/ Mark A. Snell
 	 
	 	 	       Mark A. Snell, Executive Vice  	 
	 	 	       President and Chief Financial Officer
 	 
	  	Dated: August 2, 2007 	  



	 	 	 	 	 
	 	Purchaser:





ENERGY WEST INCORPORATED

 	 
	 	By:  	/s/ David A. Certozke
 	 
	 	 	David A. Cerotzke, President
 	 
	  	Dated: August 2, 2007 	  
	 




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