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EXHIBIT 2.3
AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER
Pursuant to Section 11.2 of the Agreement and Plan of Merger (the
"Agreement"), dated as of February 13, 2001, by and among Ameritrade Holding
Corporation, a Delaware corporation, TradeCast Inc., a Delaware corporation, TC
Merger Sub Inc., a Delaware corporation, and each of the Persons listed on the
Schedule of Stockholders attached thereto (each a "Stockholder" and together
"Stockholders"), and in consideration of the mutual promises made in the
Agreement and this Amendment, the parties thereto agree that the terms of the
Agreement are amended set forth herein.
1. The definition of "Earn-Out Shares" set forth in Section 1.1 of the
Agreement is hereby deleted in its entirety and replaced with the
following:
"Earn-Out Shares" shall mean 712,500 Shares.
2. The definitions of "B2B Shares", "B2C Shares", "Net Revenue Shares"
and "Pretax Profits Shares" set forth in Section 1.1 of the
Agreement are hereby amended by deleting the number "187,500" and
replacing it with the number "178,125".
3. The definitions of "Net Revenue Shares" and "Pretax Profits Shares"
set forth in Section 1.1 of the Agreement are hereby amended by
deleting the number "93,750" and replacing it with the number
"89,062".
4. The definition of "Total Shares" set forth in Section 1.1 of the
Agreement is hereby deleted in its entirety and replaced with the
following:
"Total Shares" shall mean 8,212,500 Shares.
5. Article V of the Agreement is hereby amended by adding the following
as a new Section 5.15:
"5.15 Xxxxx Employment Agreement.
(a) Within thirty (30) days after the Closing Date, Purchaser
shall use all commercially reasonable efforts to negotiate an
amendment to the Employment Agreement, dated January 1, 2000,
between TradeCast Investments and Xxxxxxx X. Xxxxx, which amendment
shall provide for a bonus in an amount up to 37,500 Shares payable
to Xx. Xxxxx in accordance with the same criteria used to determine
whether Accrued Earn-Out Shares shall be payable to Stockholders and
Sellers. Such bonus shall be payable to Xx. Xxxxx upon the later to
occur of (i) the date eighteen (18) months after the Closing Date
and (ii) five (5) Business Days after the Earn-Out Statement becomes
final and binding in accordance with Section 2.4. The bonus shall be
paid to Xx. Xxxxx only if
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he is employed by TradeCast Investments or its Affiliates on the
date eighteen (18) months after the Closing Date.
(b) In the event that Purchaser and Xx. Xxxxx do not for any
reason execute the amendment prior to thirty (30) days after the
Closing Date, or if Xx. Xxxxx is not employed by TradeCast
Investments or its Affiliates on the date eighteen (18) months after
the Closing Date, then Purchaser shall add to the 178,125 Shares an
additional 9,375 Shares in the definitions of "B2B Shares", "B2C
Shares", "Net Revenue Shares" and "Pretax Profits Shares" set forth
in Section 1.1 of the Agreement and add to the 89,062 Shares an
additional 4,688 Shares in the definitions of "Net Revenue Shares"
and "Pretax Profits Shares" set forth in Section 1.1 of the
Agreement, in each case when computing the Accrued Earn-Out Shares,
and shall deliver to Stockholders and Sellers certificates
representing the difference between the Accrued Earn-Out Shares that
Stockholders and Sellers would be entitled to pursuant to Section
2.2(d) using such revised definitions and the number of Accrued
Earn-Out Shares delivered to Stockholders and Sellers by the Escrow
Agent pursuant to Section 2.2(d)."
6. All capitalized terms used herein and not defined in this Amendment
shall have the same meaning as set forth in the Agreement.
7. The provisions of the Agreement, as amended hereby, shall remain in
full force and effect in accordance with its terms.
8. This Amendment shall be governed by and construed in accordance with
the internal laws of the State of Delaware without giving effect to
the principles of conflicts of law thereof.
9. This Amendment may be executed in two or more counterparts, each of
which shall for all purposes be deemed to be an original and all of
which shall constitute the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2
to the Merger Agreement to be executed and delivered on this 30th day of March,
2001.
AMERITRADE HOLDING CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name:
Title:
TRADECAST, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
---------------------------------
Name:
Title:
TC MERGER SUB, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name:
Title:
/s/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------------
Xxxxxx X. Xxxxxxxx, Xx., individually
/s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx, individually
/s/ Xxxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxx, individually
Xxxxxx 2000 Trust
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx, Trustee
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000
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Earthman 2000 Trust
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
---------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.,
Trustee
0000 Xxx Xxxxx
Xxxxxxx, Xxxxx 00000
HMS 2000 Trust
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx, Trustee
c/o TradeCast Ltd.
0000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
NS 2000 Trust
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx, Trustee
c/o TradeCast Ltd.
0000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
TS 2000 Trust
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx, Trustee
c/o TradeCast Ltd.
0000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
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Delta 2000 Trust
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx, Trustee
c/o TradeCast Ltd.
0000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Omega 2000 Trust
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx, Trustee
c/o TradeCast Ltd.
0000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
