EXHIBIT 2.3
SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
is made as of this 26th day of April, 2000 by and among WISCONSIN
ENERGY CORPORATION ("Wisconsin Energy"), WICOR, INC. ("WICOR")
and CEW ACQUISITION, INC. ("Acquisition").
RECITALS
WHEREAS, Wisconsin Energy, WICOR and Acquisition are
parties to an Agreement and Plan of Merger dated as of June 27,
1999 as amended by an Amendment to Agreement and Plan of Merger
dated as of September 9, 1999 ( the "Merger Agreement"); and
WHEREAS, the parties wish to amend the Merger
Agreement to clarify certain provisions concerning the
obligations of Acquisition as set forth in this Second Amendment
to Agreement and Plan of Merger.
NOW THEREFORE, in consideration of the Recitals and of
the mutual covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed
that:
1. Amendments. The Merger Agreement is hereby
amended as follows:
(a) Section 2.6(a) of the Merger Agreement is
amended and restated in its entirety to read as follows:
"(a) Exchange Agent. As of the
Effective Time of Merger: (i) Wisconsin
Energy shall deposit, or shall cause to be
deposited, with a bank or trust company
designated by Acquisition and reasonably
acceptable to WICOR (the "Exchange Agent"),
for the benefit of the holders of shares of
WICOR Common Stock, for exchange in
accordance with this Article II of this
Agreement through the Exchange Agent,
certificates representing the aggregate
number of shares of Wisconsin Energy Common
Stock issuable pursuant to Section 2.4 of
this Agreement; and (ii) Acquisition shall
deposit, or cause to be deposited, with the
Exchange Agent for the benefit of the holders
of shares of WICOR Common Stock, for exchange
in accordance with this Article II of this
Agreement, cash representing the aggregate
amount of cash payable pursuant to Section
2.4 of this Agreement (such certificates for
shares of Wisconsin Energy Common Stock,
together with any dividends or distributions
with respect thereto, such cash and any cash
for fractional share interests paid pursuant
to Section 2.6(e) of this Agreement, being
hereinafter referred to as the "Exchange
Fund"), which deposits of certificates and
cash shall be irrevocable and the Exchange
Agent shall only make payments to Wisconsin
Energy, Acquisition and the Surviving
Corporation from the Exchange Fund pursuant
to and in accordance with Section 2.6(f) or
Section 2.6(g) of this Agreement."
(b) Section 2.6(b)(ii) of the Merger Agreement is
amended and restated in its entirety to read as follows:
"(ii) Upon surrender of a WICOR
Certificate for cancellation to the Exchange
Agent together with either a Form of Election
or a Letter of Transmittal, in each case duly
executed, and with such other documents as
the Exchange Agent may reasonably require,
the holder of such WICOR Certificate shall be
entitled to receive, and Wisconsin Energy, in
the case of Sections 2.6(b)(ii)(A) and
2.6(b)(ii)(C), and Acquisition in the case of
Section 2.6(b)(ii)(B), shall cause the
Exchange Agent to promptly deliver in
exchange therefor after the Effective Time of
Merger: (A) a certificate representing that
number of whole shares of Wisconsin Energy
Common Stock to which such holder is entitled
to receive in respect of such WICOR
Certificate pursuant to Section 2.4 of this
Agreement; and (B) a check representing the
cash that such holder is entitled to receive
in respect of such WICOR Certificate pursuant
to Section 2.4 of this Agreement; and (C) a
check for any cash in lieu of any fractional
share interest in accordance with
Section 2.6(e) of this Agreement. The WICOR
Certificate so surrendered shall forthwith be
canceled; provided, however, that fractional
share interests of any one holder shall be
aggregated to maximize the number of whole
shares of Wisconsin Energy Common Stock to be
issued and minimize the fractional interests
to be paid in cash as provided in
Section 2.6(e) of this Agreement."
(c) Section 2.6(f) of the Merger Agreement is
amended and restated in its entirety to read as follows:
"(f) Investment of Exchange Fund.
The Exchange Agent shall invest any cash
included in the Exchange Fund, as directed by
the Surviving Corporation, on a daily basis.
Any interest and other income resulting from
such investments shall be paid to the
Surviving Corporation upon termination of the
Exchange Fund pursuant to Section 2.6(g) of
this Agreement. In the event the cash in the
Exchange Fund shall be insufficient to fully
satisfy all of the payment obligations to be
made by the Exchange Agent hereunder, then
the Surviving Corporation shall promptly
deposit cash into the Exchange Fund in an
amount which is equal to the deficiency in
the amount of cash required to fully satisfy
such payment obligations."
(d) Section 2.6(g) of the Merger Agreement is
amended and restated in its entirety to read as follows:
"(g) Termination of Exchange Fund.
Any portion of the Exchange Fund which
remains undistributed to the WICOR
Shareholders after twelve (12) months after
the Effective Time of Merger shall be
delivered to the Surviving Corporation, upon
demand, and any WICOR Shareholders who have
not theretofore complied with this Article II
of this Agreement shall thereafter look only
to the Surviving Corporation for their claim
for cash and look only to Wisconsin Energy
for payment of their claim for shares of
Wisconsin Energy Common Stock, any cash in
lieu of fractional share interests and any
dividends or distributions with respect
thereto."
(e) Section 2.6(h) of the Merger Agreement is
amended and restated in its entirety to read as follows:
"(h) No Liability. Neither the
Exchange Agent nor any party to this
Agreement shall be liable to any WICOR
Shareholder for any shares of WICOR Common
Stock or Wisconsin Energy Common Stock (or
dividends or distributions with respect
thereto) or cash delivered in accordance with
applicable Law to a public official pursuant
to any abandoned property, escheat or similar
Law. If any WICOR Certificates shall not
have been surrendered prior to seven years
after the Effective Time of Merger (or
immediately prior to such earlier date on
which any shares of Wisconsin Energy Common
Stock, cash, any cash in lieu of fractional
shares of Wisconsin Energy Common Stock in
respect of such WICOR Certificates would
otherwise escheat to or become the property
of any governmental Person), then: (i) any
shares of Wisconsin Energy Common Stock, cash
in lieu of fractional share interests and
dividends or distributions in respect of such
WICOR Certificates shall, to the extent
permitted by applicable Laws, become the
property of Wisconsin Energy, free and clear
of all claims or interest of any Person
previously entitled thereto; and (ii) any
other cash shall, to the extent permitted by
applicable Laws, become the property of the
Surviving Corporation, free and clear of all
claims or interest of any Person previously
entitled thereto."
(f) Section 2.6(i) of the Merger Agreement is
amended and restated in its entirety to read as follows:
"(i) Withholding Rights.
Acquisition shall be entitled to deduct and
withhold from the cash consideration
otherwise payable pursuant to this Agreement
to any WICOR Shareholder such amounts as
Acquisition is required to deduct and
withhold with respect to the making of such
payment under the Code, or any provision of
state, local or foreign tax Law. To the
extent that amounts are so withheld by
Acquisition, such withheld amounts shall be
treated for all purposes of this Agreement as
having been paid to the WICOR Shareholder in
respect of which such deduction and
withholding was made by Acquisition."
2. Continuance of Merger Agreement. Except as
specifically amended by this Second Amendment to Agreement and
Plan of Merger, the Merger Agreement shall continue in full force
and effect.
IN WITNESS WHEREOF, the parties have caused this Second
Amendment to Agreement and Plan of Merger to be duly executed as
of the day and year first above written.
WISCONSIN ENERGY CORPORATION
By /s/ Xxxxxxx X. Xxxxx
---------------------------
Xxxxxxx X. Xxxxx,
Chairman of the Board, President
and Chief Executive Officer
WICOR, INC.
By /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Xxxxxx X. Xxxxxxxxx,
Chairman and Chief Executive Officer
CEW ACQUISITION, INC.
By /s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx,
Chairman of the Board, President
and Chief Executive Officer
