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VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 28, 1997, by and between Fleet
Financial Group, Inc., a Rhode Island corporation ("Fleet"), and Xxxxxx Xxxxx,
an individual who resides in the Commonwealth of Pennsylvania (the
"Stockholder").
W I T N E S S E T H :
WHEREAS, the Stockholder beneficially owns 3,400,570 shares of Class
A Common Stock, par value 0.01 per share (the "Voting Common Stock"), of Advanta
Corp., a Delaware corporation (the "Company") (the shares of Voting Common Stock
beneficially owned by the Stockholder together with any shares of Voting Common
Stock acquired by the Stockholder after the date hereof and prior to the record
date of the Special Meeting (as hereinafter defined) upon exercise of options or
otherwise are referred to herein as the "Shares"); and
WHEREAS, Fleet and the Company have entered into a Contribution
Agreement (the "Contribution Agreement") pursuant to which, among other things,
the Company will contribute substantially all of the assets and liabilities of
its consumer credit card business to a newly formed limited liability company of
which Fleet and its affiliates will have a controlling interest; and
WHEREAS, the Contribution Agreement provides that it is a condition
precedent to the consummation of the transactions contemplated thereby that the
Contribution Agreement be approved by the holders of shares of Voting Common
Stock and Class A Preferred Stock, par value $1,000 per share, of the Company
and the Board of Directors of the Company has agreed to convene a meeting of
stockholders (the "Special Meeting") to consider and vote upon a resolution to
approve and adopt the Contribution Agreement and the transactions contemplated
thereby (the "Proposal"); and
WHEREAS, as a condition to its willingness to enter into the
Contribution Agreement, Fleet has requested that the Stockholder agree, and the
Stockholder has agreed, to vote his Shares in favor of the Proposal at the
Special Meeting.
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NOW, THEREFORE, to induce Fleet to enter into the Contribution
Agreement and in consideration of the mutual covenants and agreements set forth
herein, and intending to be bound hereby, the parties agree as follows:
1. Voting of Shares; No Transfer of Shares; No Grant of Voting
Rights. The Stockholder agrees at the Special Meeting to vote or cause to be
voted in favor of the Proposal all of the Shares beneficially owned by the
Stockholder. The Stockholder agrees that as long as this Agreement is in effect,
he will not sell, assign or otherwise transfer or dispose of (by voting
agreement or otherwise) any of the Shares and will not grant any proxies with
respect to the voting of the Shares (except in furtherance of the provisions of
the Contribution Agreement) or enter into a voting trust or other agreement with
respect to the voting of any of such Shares. In addition, the Stockholder agrees
that from the date hereof until this Agreement is terminated in accordance with
its terms, he will not pledge or otherwise encumber the Shares in such a manner
as to terminate his voting rights with respect to the Shares; provided, however,
that it is agreed that the Stockholder has pledged and may continue to pledge
the Shares to secure indebtedness of the Stockholder to an institutional lender
under arrangements pursuant to which the pledgee does not have a right to vote
the Shares until the occurrence of an event of default under the applicable loan
documents.
2. Representations and Warranties of the Stockholder. The
Stockholder represents and warrants to Fleet as follows:
(a) The Stockholder has the unrestricted right to vote the
Shares in accordance with the terms of this Agreement.
(b) The Stockholder has full power and authority and legal
capacity to enter into this Agreement and consummate the
transactions contemplated hereby, and this Agreement constitutes the
legal, valid and binding agreement of the Stockholder enforceable in
accordance with its terms (except as enforceability may be limited
by bankruptcy, insolvency, moratorium or other similar laws
affecting creditors' rights generally or by the principles governing
the availability of equitable remedies).
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(c) This Agreement covers all of the shares of Voting Common
Stock beneficially owned by the Stockholder except for options to
purchase shares of Voting Common Stock which were granted by the
Company to the Stockholder (provided, however, that any Shares
acquired by the Stockholder upon exercise of any such options after
the date hereof and prior to the record date of the Special Meeting
are covered by this Agreement).
(d) This Agreement and the execution and delivery hereof by
the Stockholder do not, and the consummation of the transactions
contemplated hereby will not, (i) conflict with or result in any
violation of any trust documents of the Stockholder, as applicable,
(ii) result in a violation of or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise
to any right of termination, cancellation or acceleration) under,
any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, license, agreement or other instruments or
obligations to which the Stockholder is a party or by which any of
his property or assets may be bound, or (iii) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to
the Stockholder or any of his properties or assets, excluding from
the foregoing clauses (ii) and (iii) violations, breaches, or
defaults which, either individually or in the aggregate, would not
have a materially adverse effect on the financial condition of the
Stockholder.
3. Termination. This Agreement shall terminate on the earlier of (i) the
closing of the transactions contemplated by the Contribution Agreement or (ii)
the termination of the Contribution Agreement in accordance with its terms.
4. Specific Performance. The parties hereto acknowledge and agree that if
any of the provisions of this Agreement were not performed by the Stockholder in
accordance with their specific terms or were otherwise breached, Fleet would not
have an adequate remedy at law and would be irreparably harmed and that the
damages therefor would be difficult to determine. It is accordingly agreed that
Fleet shall be entitled to injunctive relief to prevent
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breaches of this Agreement by the Stockholder and to specifically enforce the
terms and provisions hereof, in addition to any other remedy to which it may be
entitled at law or in equity.
5. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if hand delivered in person
or by next-day courier, transmitted by facsimile or mailed by registered or
certified mail, postage prepaid, return receipt requested, as follows:
(a) If to Fleet, to:
Fleet Financial Group, Inc.
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Managing Director,
Strategic Planning and Corporate
Development
Facsimile No.: (000) 000-0000
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with a copy to:
Fleet Financial Group, Inc.
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Associate General Counsel
Facsimile No.: (000) 000-0000
and a copy to:
Xxxxxxx & Xxxxxx
2700 Hospital Trust Tower, 28th Floor
Providence, Rhode Island 02903
Attention: V. Xxxxxx Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
(b) If to the Stockholder, to:
Xx. Xxxxxx Xxxxx
c/o Advanta Corp.
Welsh and XxXxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
with a copy to:
Advanta Corp.
Welsh and XxXxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxx, General Counsel
Facsimile No.: (000) 000-0000
and a copy to:
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx XX, Esq.
Facsimile No: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the other parties in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt.
6. Assignment. This Agreement shall not be assigned by operation of law or
otherwise.
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7. Amendments. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
8. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania,
without regard to its conflicts of law rules.
9. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same agreement.
10. Effect of Headings. The headings herein are for reference purposes
only and shall not in any way affect the meaning or interpretation hereof.
11. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto and supersedes all prior agreements and understandings,
oral or written, among the parties hereto with respect to the subject matter
hereof.
[INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties hereto on the date first above written.
FLEET FINANCIAL GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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/s/ Xxxxxx Xxxxx
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XXXXXX XXXXX
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