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EXHIBIT 2.6
AMENDMENT NO. 2 TO INTEREST PURCHASE AGREEMENT
Pursuant to Section 11.2 of the Interest Purchase Agreement (the
"Agreement"), dated as of February 13, 2001, by and among Ameritrade Holding
Corporation, a Delaware corporation, Fortradecast L Partners, L.P., a Texas
limited partnership, and Fortradecast S Partners, L.P., a Texas limited
partnership, 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 as 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 5.11:
"5.11 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 Sellers and
Stockholders. 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 he is employed by
TradeCast Investments or its Affiliates on the date eighteen (18)
months after the Closing Date.
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(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 Sellers and Stockholders certificates
representing the difference between the Accrued Earn-Out Shares that
Sellers and Stockholders would be entitled to pursuant to Section
2.2(d) using such revised definitions and the number of Accrued
Earn-Out Shares delivered to Sellers and Stockholders 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 Purchase Agreement to be executed and delivered on this 30th day of
March, 2001.
AMERITRADE HOLDING CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name:
Title:
FORTRADECAST L PARTNERS, L.P.
By: KCE, L.P.
Its: General Partner
By: KCE Genpar, LLC
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Name:
Title:
FORTRADECAST S PARTNERS, L.P.
By: Carmel Land & Cattle Co., L.P.
Its: General Partner
By: Carmel Genpar, LLC
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Name:
Title:
