THIS AMENDMENT NO. 9 to that certain Agreement and Plan of Merger, dated as
of May 4, 2000 (the "Merger Agreement"), by and among Medallion Financial Corp.,
AMTC Merger Corp. and Ameritrans Capital Corporation is made, executed and
delivered as of this 31st day of October, 2000 by the parties hereto pursuant to
Section 14.4 of the Merger Agreement. All capitalized terms not otherwise
defined shall have the meanings ascribed to such terms in the Merger Agreement.
W I T N E S S E T H:
WHEREAS, the parties desire to amend and restate certain terms and
conditions of the Merger Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1.1. Amendment. Section 3.1(a)(1) is hereby amended by deleting the
provisions from 3.1(a)(1)(t) until the end of Section 3.1(a)(1) and inserting
the following in lieu thereof:
"(t) if the average of the closing sale prices per share of Parent
Common Stock on the Nasdaq National Market for the Determination
Period; is greater than $33.99, then the Exchange Ratio shall be .50;
(u) (x) $8.01 by (y) the average price of the closing sale prices per
share of Parent Common Stock on the Nasdaq National Market for the
Determination Period; if such average is between $14.00 and 14.99.
If the average of the closing sale prices per share of Parent Common
Stock on the Nasdaq National Market for the Determination Period is less
than $14.00, then either Parent or the Company shall have the right to
terminate this Agreement pursuant to Article XII;
(v) If at any time after the execution of this Agreement, but prior to
the Effective Time, the outstanding shares of Parent Common Stock
shall be changed into a different number of shares or a different
class by reason of any reclassification, recapitalization, split-up,
combination, exchange of shares or readjustment, or if a stock
dividend thereon shall be declared with a record date within such
period, the Exchange Ratio shall be correspondingly adjusted."
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1.2. Amendment. Section 4.12 is hereby amended by deleting subsection 4.12
and inserting the following in lieu thereof:
"Section 4.12 No Material Adverse Change. Except as disclosed in Section
4.12 of the Company Disclosure Schedule, since June 30, 1999, there has
been no material adverse change in the management, assets, Liabilities,
properties, business, operations, financial condition, results of
operations or prospects of the Company or its Subsidiaries, provided that
(i) with respect to the value of the underlying collateral for Medallion
Loans (as defined herein) this representation shall be as of November 1,
2000; (ii) the Permitted Adjustments shall not be, alone or together with
any other event, deemed to be a material adverse change; and (iii) any
change occurring after January 31, 2000 in the value of the underlying
collateral for Medallion Loans and any other loans in the Company's
portfolio shall not be, alone or together with any other event, deemed to
be a material adverse change."
1.3. Amendment. Section 8.9 is hereby amended by deleting subsection 8.9
and inserting the following in lieu thereof:
"Section 8.9 Financing. (a) Parent shall by November 30, 2000, have either
(i) received from the Company's lenders such lender's consent (a) to this
Agreement and the transactions contemplated hereby and (b) to continue
financing upon the same terms (or upon terms satisfactory to Parent) or
(ii) using commercially reasonable best efforts, obtained comparable
financing to replace any Company financing for which lender approval has
not been received."
1.4. Amendment. Section 12.1(a) is hereby amended by deleting section
12.1(a) and inserting the following in lieu thereof:
"(a) by either Parent or the Company if (i) the Merger shall not have been
consummated on or before January 31, 2001, provided that termination
pursuant to this Section 12.1(a) shall not be permitted if the sole
condition required to close is approval from the U.S. Small Business
Administration as set forth in Section 7.5 hereof or (ii) the Merger shall
not have been consummated on or before February 23, 2001."
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1.5. Amendment. Section 12.1(f) is hereby amended by deleting section
12.1(f) and inserting the following in lieu thereof:
"(f) by either Parent or the Company if the average of the closing sales
prices per share of Parent Common Stock on the NASDAQ National Market for
the Determination Period is less than $14.00;
1.6. Counterparts. This agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
1.7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
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IN WITNESS WHEREOF, the parties have executed this agreement on the date
first above written.
MEDALLION FINANCIAL CORP.
By: /s/ Andrew Murstein
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Name: Andrew Murstein
Title President
AMTC MERGER CORP.
By: /s/ Andrew Murstein
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Name: Andrew Murstein
Title President
AMERITRANS CAPITAL CORPORATION
By: /s/ Gary C. Granoff
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Name: Gary C. Granoff
Title President
