<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) February 20, 1998
ADVANTA CORP.
---------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 0-14120 23-1462070
- ------------------------------ -------------- --------------------
(STATE OR OTHER JURISDICTION (COMMISSION (IRS EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NO.)
WELSH & MCKEAN ROADS,
P.O. BOX 844, SPRING HOUSE, PENNSYLVANIA 19477
- ---------------------------------------------- ------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (215) 657-4000
---------------------------------------------------------------------------
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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<PAGE> 2
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
Pursuant to the terms of the Contribution Agreement, dated as of October
28, 1997, as amended February 20, 1998, by and between Advanta Corp., a Delaware
Corporation ("Advanta"), and Fleet Financial Group, Inc., a Rhode Island
corporation ("Fleet"), Advanta transferred certain assets and liabilities of its
consumer credit card business (the "Transaction"). The Transaction was
consummated on February 20, 1998 (the "Closing Date").
Fleet and certain of its subsidiaries and Advanta and certain of its
subsidiaries have contributed certain assets and liabilities of their respective
consumer credit card businesses to Fleet Credit Card, LLC, a newly formed Rhode
Island limited liability company ("Fleet LLC"). The assets which Advanta
contributed to Fleet LLC had a book value of approximately $2.7 billion on the
financial statements of Advanta and a fair market value of approximately $3.3
billion, resulting in an increase to Advanta's retained earnings of
approximately $565 million in connection with the Contribution. Fleet LLC
assumed approximately $3.2 billion of liabilities from Advanta, or approximately
$545 million in excess of the balance sheet value of assets assigned to Fleet
LLC by Advanta and certain of its subsidiaries. In addition, Advanta and its
subsidiaries acquired, in the aggregate, a 4.99% membership interest in Fleet
LLC in exchange for the contribution to Fleet LLC. Advanta values such
membership interest in Fleet LLC at approximately $20 million. The fair market
value of the initial assets, net of liabilities, which Fleet has contributed to
Fleet LLC is $380 million. As of the Closing Date, Fleet, through its
subsidiaries, held a 95.01% interest in Fleet LLC. Subsequent to the
consummation of the Transaction it is anticipated that Fleet's interest in Fleet
LLC may increase, but that Advanta's interest in Fleet LLC will not be less than
1%.
As of the February 20, 1998 Closing Date, the assets transferred by Advanta
and its subsidiaries to Fleet LLC represented approximately 39% of the book
value of Advanta's consolidated assets under generally accepted accounting
principles. To the extent that as a consequence of regulatory or contractual
requirements certain liabilities of the consumer credit card businesses could
not be held directly by Fleet LLC, Fleet LLC has assigned such liabilities to
Fleet Credit Card Bank or Fleet National Bank, and Fleet LLC will reimburse
Fleet Credit Card Bank and Fleet National Bank on account of any payments made
by either of them in respect of such liabilities as if Fleet LLC were the sole
obligor in respect of such liabilities.
Advanta has retained all of the assets and liabilities relating to its
businesses other than the consumer credit card business, including principally
its mortgage and business services businesses. In addition, Advanta has retained
certain assets and liabilities relating to its consumer credit card business
which were not necessary for the operation of the business, including: (i)
credit card accounts receivable and related contingent liabilities or
obligations under certain consumer credit card accounts generated in specific
programs; and (ii) obligations incurred on or prior to the Closing Date under
the credit insurance policies and debt cancellation contracts sold by or on
behalf of Advanta to certain of its customers on or before such date (the
"Credit Insurance Business"), together with the related reserves for such
obligations maintained by Advanta.
The Contribution Agreement provides that Fleet, Fleet National Bank and
Fleet LLC are joint and several indemnitors of Advanta, and that Fleet and Fleet
National Bank are irrevocable and unconditional guarantors and sureties of the
obligations of Fleet LLC and Fleet Credit Card Bank, with respect to certain
liabilities transferred by Advanta in the Transaction, including certain
obligations of Advanta National Bank.
In connection with its membership interest in Fleet LLC, Advanta will be
allocated its proportionate share of net income and net loss of Fleet LLC. In
addition, if certain measures of the pre-tax operating earnings of Fleet's
consumer credit card business exceed specified target earnings and a specified
return on average managed assets in any of the five calendar years beginning in
1998, Fleet LLC will pay to Advanta a special distribution equal to the excess
of such operating earnings over the target earnings, provided that in no event
could total payments exceed $100 million or payments in any year exceed $33.33
million (subject to adjustment as provided in the Fleet LLC Operating
Agreement).
Advanta will continue to operate its mortgage and business services
companies, including Advanta National Bank, which will continue to be well
capitalized. As a result of the Contribution, approximately $1.3 billion in
cash, cash equivalents, and investments which had previously been held by
Advanta in connection
1
<PAGE> 3
with its consumer credit card business was no longer required in such business
and became available for general corporate purposes. Advanta used approximately
$850 million of such amount (before taking into account the exercise price of
options) to purchase 7,882,750 shares of its Class A Common Stock, 12,482,850
shares of its Class B Common Stock, and 1,078,930 of its SAILS Depositary Shares
through an issuer tender offer (the "Offer") which was completed on February 20,
1998. The remaining portion of the $1.3 billion will be used for the working
capital needs of Advanta's continuing businesses.
The foregoing description of the disposition of Advanta's consumer credit
card business is qualified in its entirety by reference to the Contribution
Agreement attached hereto as Exhibit 2.1 and the First Amendment to the
Contribution Agreement attached hereto as Exhibit 2.2.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Financial Statements of Business Acquired.
Not Applicable
(b) Pro Forma Financial Information.
The following pro forma unaudited consolidated financial information is
based on historical information which has been adjusted to reflect the
Transaction and the purchase pursuant to the Offer of up to 7,882,750 shares of
Class A Common Stock and 12,482,850 shares of Class B Common Stock at $40 per
share net and up to 1,078,930 depositary shares each representing one
one-hundredth interest in a share of 6 3/4% Convertible Class B Preferred Stock,
Series 1995 (Stock Appreciated Income Linked Securities (SAILS)) at $32.80 per
share net. The pro forma consolidated income statements were prepared assuming
that the Transaction and purchase pursuant to the Offer had occurred January 1,
1997 and January 1, 1996 for the years ended December 31, 1997 and 1996
respectively. The pro forma consolidated balance sheets were prepared assuming
that the Transaction and purchase pursuant to the Offer had occurred on December
31, 1997 and 1996.
The pro forma unaudited consolidated financial information presented below
does not purport to represent what the results of operations or financial
position would actually have been if the Transaction and purchase pursuant to
the Offer had occurred on the dates referred to above. Also, the pro forma
unaudited consolidated financial information is not indicative of the future
results of operations or financial position of Advanta to be expected in future
periods. A substantial portion of corporate expenses incurred in the past have
been to support the operations to be contributed. Also, Advanta has incurred
expenditures in the past for new businesses and product development. Associated
with the Transaction, Advanta intends to substantially reduce corporate expenses
and expenses associated with business and product development not directly
associated with its mortgage and business service companies. No pro forma
adjustments have been reflected associated with Advanta's plans to reduce these
expenses. Further, the Pro Forma Adjustments do not reflect a restructuring
charge or similar charges related to the planned reduction in corporate expenses
or transaction expenses associated with the Transaction and purchase pursuant to
the Offer. The restructuring charge or similar charges and transaction expenses
will be incurred during the first quarter of 1998. The Pro Forma Adjustments are
based upon available information and certain assumptions that the Company
believes are reasonable.
2
<PAGE> 4
ADVANTA CORP. AND SUBSIDIARIES
PRO FORMA UNAUDITED CONSOLIDATED INCOME STATEMENT
YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
ADVANTA CORP. TRANSACTION TENDER OFFER ADVANTA CORP.
AND SUBSIDIARIES PRO FORMA PRO FORMA AND SUBSIDIARIES
HISTORICAL ADJUSTMENTS ADJUSTMENTS PRO FORMA
---------------- ----------- ------------ ----------------
($ IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
Interest income:
Loans and leases............................ $ 276,981 $(179,732)(A) $ -- $ 97,249
Investments................................. 140,637 (28,363)(A) (50,584)(E) 61,690
--------- --------- -------- --------
Total interest income......................... 417,618 (208,095) (50,584) 158,939
--------- --------- -------- --------
Total interest expense........................ 324,558 (191,431)(B) -- 133,127
--------- --------- -------- --------
Net interest income........................... 93,060 (16,664) (50,584) 25,812
--------- --------- -------- --------
Provision for credit losses................... 210,826 (185,379)(A) -- 25,447
--------- --------- -------- --------
Net interest income (loss) after provision for
credit losses............................... (117,766) 168,715 (50,584) 365
--------- --------- -------- --------
Noninterest revenues:
Gain on sale of credit cards................ -- --(A) -- --
Other noninterest revenues.................. 845,137 (622,242)(A) -- 222,895
--------- --------- -------- --------
Total noninterest revenues.................... 845,137 (622,242) -- 222,895
--------- --------- -------- --------
Operating expenses:
Amortization of credit card deferred
origination costs, net................... 69,344 (64,566)(A) -- 4,778
Other operating expenses.................... 561,497 (284,856)(C) 19,318(E) 295,959
--------- --------- -------- --------
Total operating expenses...................... 630,841 (349,422) 19,318 300,737
Income (loss) before income taxes............. 96,530 (104,105) (69,902) (77,477)
--------- --------- -------- --------
Provision (benefit) for income taxes.......... 24,905 (36,437)(D) (24,466)(D) (35,998)
--------- --------- -------- --------
Net income (loss)............................. $ 71,625 $ (67,668) $(45,436) $(41,479)
========= ========= ======== ========
Basic earnings per common share............... $ 1.52 $ (1.89)(F)
========= ========
Dilutive earnings per common share............ $ 1.50 $ (1.89)(F)
========= ========
Basic average common shares outstanding....... 42,807 (19,128) 23,679
========= ======== ========
Dilutive average common shares outstanding.... 43,501 (19,822) 23,679
========= ======== ========
Ratio of earnings to fixed charges............ 1.29x (G)
========= ========
</TABLE>
- ---------------
(A) The pro forma consolidated income statement reflects the elimination of
income and expense related to the results of operations of the Advanta
consumer credit card business (the "Business") as if the Transaction had
occurred for the periods presented.
(B) The pro forma consolidated income statement reflects (1) interest expense of
the Business, and (2) an adjustment of approximately $75.7 million to
reflect approximately $1.3 billion of additional interest bearing
liabilities to be transferred in the Transaction above the amount of
interest bearing liabilities of the Business. The $1.3 billion of additional
interest bearing liabilities will be transferred from Advanta National Bank
(ANB), where the predominance of the credit card operations are conducted
and were incurred in the ordinary course of ANB's business.
(C) The pro forma consolidated income statement reflects the reduction in other
operating expenses related to (1) the results of operations of the Business
had the Transaction occurred for the periods presented (2) $532,000 of
additional depreciation expense for fixed assets to be transferred to Fleet
LLC that were not dedicated to the Business and (3) $4.6 million of
operating expenses for an Advanta Corp. support group whose operations will
be transferred to Fleet LLC.
(D) The pro forma consolidated income statement reflects the net effects of the
Pro Forma Adjustments at the statutory federal tax rate of 35% for the
period presented.
(E) The pro forma consolidated income statement reflects the purchase of
approximately $850 million of shares of Advanta's outstanding capital stock
through the Offer as if the purchase had occurred for the periods presented.
The pro forma consolidated income statement reflects (1) the reduction of
interest income by approximately $50.6 million to reflect the sale of $820
million of investments to purchase shares of Advanta Class A Common Stock,
Class B Common Stock (together with the Class A Common Stock, the "Common
Shares") and depositary shares each representing one one-hundredth interest
in a share of 6 3/4% Convertible Class B Preferred Stock, Series 1995 (Stock
Appreciated Income Linked Securities (SAILS)) (the "SAILS Depositary
Shares") and (2) the increase in compensation expense related to the tender
of Common Shares underlying options granted under the Advanta's stock option
plans. The $820 million of investments sold reflects $850 million of shares
at the applicable purchase price per share primarily net of the difference
between $40 per share and the option exercise price of options anticipated
to be exercised in connection with the Offer.
(F) Pro forma earnings per share (1) includes a $3.1 million increase to net
income for the excess of the carrying value of the SAILS Depositary Shares
redeemed over the amount paid upon redemption and (2) reflects $6.4 million
of preferred stock dividends.
(G) For the year ended December 31, 1997, pro forma earnings were inadequate to
cover pro forma fixed charges. The deficiency was approximately $77.5
million.
3
<PAGE> 5
ADVANTA CORP. AND SUBSIDIARIES
PRO FORMA UNAUDITED CONSOLIDATED INCOME STATEMENT
YEAR ENDED DECEMBER 31, 1996
<TABLE>
<CAPTION>
ADVANTA CORP. TRANSACTION TENDER OFFER ADVANTA CORP.
AND SUBSIDIARIES PRO FORMA PRO FORMA AND SUBSIDIARIES
HISTORICAL ADJUSTMENTS ADJUSTMENTS PRO FORMA
---------------- ----------- ------------ ----------------
($ IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
Interest income:
Loans and leases............................ $267,823 $(220,745)(A) $ -- $ 47,078
Investments................................. 80,142 (14,657)(A) (46,557)(E) 18,928
-------- --------- -------- --------
Total interest income......................... 347,965 (235,402) (46,557) 66,006
Total interest expense........................ 269,700 (230,642)(B) -- 39,058
-------- --------- -------- --------
Net interest income........................... 78,265 (4,760) (46,557) 26,948
-------- --------- -------- --------
Provision for credit losses................... 96,862 (104,128)(A) -- (7,266)
-------- --------- -------- --------
Net interest income (loss) after provision for
credit losses............................... (18,597) 99,368 (46,557) 34,214
Noninterest revenues:
Gain on sale of credit cards................ 33,820 (33,820)(A) -- --
Other noninterest revenues.................. 772,712 (605,000)(A) -- 167,712
-------- --------- -------- --------
Total noninterest revenues.................... 806,532 (638,820) -- 167,712
-------- --------- -------- --------
Operating expenses:
Amortization of credit card deferred
origination costs, net................... 88,517 (86,088)(A) -- 2,429
Other operating expenses.................... 434,657 (246,467)(C) 27,703(E) 215,893
-------- --------- -------- --------
Total operating expenses...................... 523,174 (332,555) 27,703 218,322
Income before income taxes.................... 264,761 (206,897) (74,260) (16,396)
Provision for income taxes.................... 89,104 (72,414)(D) (25,991)(D) (9,301)
-------- --------- -------- --------
Net income.................................... $175,657 $(134,483) $(48,269) $ (7,095)
======== ========= ======== ========
Basic earnings per common share............... $ 4.15 $ (0.30)(F)
======== ========
Dilutive earnings per common share............ 3.89 $ (0.30)(F)
======== ========
Basic average common shares outstanding....... 40,794 (17,358) 23,436
======== ======== ========
Dilutive average common shares outstanding.... 45,073 (21,637) 23,436
======== ======== ========
Ratio of earnings to fixed charges............ 1.97x (G)
======== ========
</TABLE>
- ---------------
(A) The pro forma consolidated income statement reflects the elimination of
income and expense related to the results of operations of the Advanta
consumer credit card business (the "Business") as if the Transaction had
occurred for the periods presented.
(B) The pro forma consolidated income statement reflects (1) interest expense of
the Business, and (2) an adjustment of approximately $67.4 million to
reflect approximately $1.3 billion of additional interest bearing
liabilities to be transferred in the Transaction above the amount of
interest bearing liabilities of the Business. The $1.3 billion of additional
interest bearing liabilities will be transferred from Advanta National Bank
(ANB), where the predominance of the credit card operations are conducted
and were incurred in the ordinary course of ANB's business.
(C) The pro forma consolidated income statement reflects the reduction in other
operating expenses related to (1) the results of operations of the Business
had the Transaction occurred for the periods presented (2) $302,000 of
additional depreciation expense for fixed assets to be transferred to Fleet
LLC that were not dedicated to the Business and (3) $3.9 million of
operating expenses for an Advanta Corp. support group whose operations will
be transferred to Fleet LLC.
(D) The pro forma consolidated income statement reflects the net effects of the
Pro Forma Adjustments at the statutory federal tax rate of 35% for the
period presented.
(E) The pro forma consolidated income statement reflects the purchase of
approximately $850 million of shares of Advanta's outstanding capital stock
through the Offer as if the purchase had occurred for the periods presented.
The pro forma consolidated income statement reflects (1) the reduction of
interest income by approximately $46.6 million to reflect the sale of $813
million of federal funds sold, interest-bearing deposits and investments to
purchase shares of Advanta Class A Common Stock, Class B Common Stock
(together with the Class A Common Stock, the "Common Shares") and depositary
shares each representing one one-hundredth interest in a share of 6 3/4%
Convertible Class B Preferred Stock, Series 1995 (Stock Appreciated Income
Linked Securities (SAILS)) (the "SAILS Depositary Shares") and (2) the
increase in compensation expense related to the tender of Common Shares
underlying options granted under the Advanta's stock option plans. The $813
million of federal funds sold, interest-bearing deposits and investments
sold reflects $850 million of shares at the applicable purchase price per
share primarily net of the difference between $40 per share and the option
exercise price of options anticipated to be exercised in connection with the
Offer.
(F) Pro forma earnings per share (1) includes a $3.9 million increase to net
income for the excess of the carrying value of the SAILS Depositary Shares
redeemed over the amount paid upon redemption and (2) reflects $3.8 million
of preferred stock dividends.
(G) For the year ended December 31, 1996, pro forma earnings were inadequate to
cover pro forma fixed charges. The deficiency was approximately $16.4
million.
4
<PAGE> 6
ADVANTA CORP. AND SUBSIDIARIES
PRO FORMA UNAUDITED CONSOLIDATED BALANCE SHEET
AS OF DECEMBER 31, 1997
<TABLE>
<CAPTION>
ADVANTA CORP. TRANSACTION TENDER OFFER ADVANTA CORP.
AND SUBSIDIARIES PRO FORMA PRO FORMA AND SUBSIDIARIES
HISTORICAL ADJUSTMENTS ADJUSTMENTS PRO FORMA
---------------- ----------- ------------ ----------------
($ IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
ASSETS
Cash................................ $ 57,953 $ (55,943)(B) $ -- $ 2,010
Federal funds sold and
interest-bearing deposits with
banks............................. 823,083 (464,838)(B) -- 358,245
Investments available for sale...... 1,269,209 -- (819,844)(I) 449,365
Loan and lease receivables, net:
Available for sale................ 1,262,441 (686,447)(C) -- 575,994
Other loan and lease receivables,
net............................ 2,114,105 (1,729,512)(A) -- 384,593
---------- ----------- --------- ----------
Total loan and lease receivables,
net............................... 3,376,546 (2,415,959) -- 960,587
---------- ----------- --------- ----------
Premises and equipment, net......... 152,215 (84,243)(D) -- 67,972
Amounts due from credit card
securitizations................... 208,330 (208,330)(A) -- --
Other assets........................ 798,796 (238,099)(E) -- 560,697
---------- ----------- --------- ----------
Total assets................... $6,686,132 $(3,467,412) $(819,844) $2,398,876
========== =========== ========= ==========
LIABILITIES
Deposits............................ $3,017,611 $(2,893,258)(F) $ -- $ 124,353
Debt and other borrowings........... 2,300,946 (1,056,072)(F) -- 1,244,874
Other liabilities................... 340,625 (48,082)(G) (6,761)(I) 285,782
---------- ----------- --------- ----------
Total liabilities.............. 5,659,182 (3,997,412) (6,761) 1,655,009
---------- ----------- --------- ----------
Company-obligated mandatorily
redeemable preferred securities of
subsidiary trust holding solely
subordinated debentures of the
Company........................... 100,000 -- -- 100,000
STOCKHOLDERS' EQUITY
Class A preferred stock............. 1,010 -- -- 1,010
Class B preferred stock............. -- -- -- --
Class A common stock................ 182 -- (79)(J) 103
Class B common stock................ 266 -- (113)(I) 153
Additional paid-in capital, net..... 354,190 -- (160,716)(J) 193,474
Retained earnings, net.............. 585,709 530,000(H) (652,176)(J) 463,533
Less: Treasury stock at cost,....... (14,407) -- (14,407)
---------- ----------- --------- ----------
Total stockholders' equity..... 926,950 530,000 (813,083) 643,867
---------- ----------- --------- ----------
Total liabilities and
stockholders' equity......... $6,686,132 $(3,467,412) $(819,844) $2,398,876
========== =========== ========= ==========
Common shares outstanding at end of
period............................ 44,038 24,910
Book value per common share......... 19.01 23.78
</TABLE>
5
<PAGE> 7
ADVANTA CORP. AND SUBSIDIARIES
PRO FORMA UNAUDITED CONSOLIDATED BALANCE SHEET
AS OF DECEMBER 31, 1997
- ---------------
(A) Represents the contribution to Fleet LLC of assets and liabilities of
Advanta consumer credit card business (the "Business") had the Transaction
occurred at the balance sheet date.
(B) Represents (1) the contribution to Fleet LLC of cash, federal funds sold
and interest bearing deposits dedicated to the Business and (2) a $10
million redemption of federal funds sold that were not dedicated to the
Business.
(C) Represents the contribution to Fleet LLC of loans available for sale
dedicated to the Business except for a very small portion of consumer
credit card receivables generated in specific programs that will not be
contributed to Fleet LLC.
(D) Represents (1) the contribution to Fleet LLC of property and equipment
dedicated to the Business and (2) approximately $8 million of fixed assets
to be contributed to Fleet LLC that were not dedicated to the Business.
(E) Represents (1) the contribution to Fleet LLC of other assets dedicated to
the Business except for $8.8 million of Credit Insurance Business related
assets that will not be contributed to Fleet LLC and (2) Advanta's
membership interest in Fleet LLC valued at $20 million.
(F) Represents the contribution to Fleet LLC of deposits, debt and other
borrowings by an amount equaling total assets of the Business plus an
additional $510 million of liabilities representing a portion of the
premium received by Advanta, less other liabilities contributed to Fleet
LLC in accordance with the Contribution Agreement.
(G) Represents the contribution to Fleet LLC of (1) other liabilities related
to the Business had the Transaction occurred at the balance sheet date and
(2) $29.1 million of accrued interest payable on the deposits, debt and
other borrowings discussed in (E) above, net of (3) $16.4 million of Credit
Insurance Business related liabilities that will not be contributed to
Fleet LLC.
(H) Represents the increase in retained earnings resulting from the gain on the
Transaction of $530 million, consisting of liabilities in excess of assets
contributed of $510 million and Advanta's membership interest in Fleet LLC
valued at $20 million.
(I) Represents the sale of $820 million of investments to purchase the Common
Shares, the SAILS Depositary Shares and options to purchase Common Shares,
and the tax benefit related to the tender of Common Shares underlying
options granted under the Advanta's stock option plans. The $820 million of
investments sold reflects $850 million of shares at the applicable purchase
price per share primarily net of the difference between $40 per share and
the option exercise price of options anticipated to be exercised in
connection with the Offer.
(J) Represents (1) the purchase of approximately 7.9 million Class A Common
Stock and approximately 11.3 million Class B Common Stock at $40 per share;
(2) the purchase of approximately 1.1 million SAILS Depositary Shares at
$32.80 per share and (3) the tender of approximately 1.2 million of Common
Shares underlying options at a cost to the Company of the amount by which
$40 per share exceeds the option exercise price.
6
<PAGE> 8
ADVANTA CORP. AND SUBSIDIARIES
PRO FORMA UNAUDITED CONSOLIDATED BALANCE SHEET
AS OF DECEMBER 31, 1996
<TABLE>
<CAPTION>
ADVANTA CORP. TRANSACTION TENDER OFFER ADVANTA CORP.
AND SUBSIDIARIES PRO FORMA PRO FORMA AND SUBSIDIARIES
HISTORICAL ADJUSTMENTS ADJUSTMENTS PRO FORMA
---------------- ----------- ------------ ----------------
($ IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
ASSETS
Cash................................ $ 165,875 $ (161,982)(B) $ -- $ 3,893
Federal funds sold and
interest-bearing deposits with
banks............................. 885,709 (338,923)(B) (338,317)(H) 208,469
Investments available for sale...... 785,600 (17,925) (474,990)(H) 292,685
Loan and lease receivables, net:
Available for sale................ 1,476,146 (1,062,930)(A) -- 413,216
Other loan and lease receivables,
net............................ 1,136,857 (941,157)(A) -- 195,700
---------- ----------- --------- ----------
Total loan and lease receivables,
net............................... 2,613,003 (2,004,087) -- 608,916
---------- ----------- --------- ----------
Premises and equipment, net......... 108,130 (73,022)(C) -- 35,108
Amounts due from credit card
securitizations................... 399,359 (399,359)(A) -- --
Other assets........................ 626,283 (167,457)(D) -- 458,826
---------- ----------- --------- ----------
Total assets................... $5,583,959 $(3,162,755) $(813,307) $1,607,897
========== =========== ========= ==========
LIABILITIES
Deposits............................ $1,860,058 $(1,809,337)(E) $ -- $ 50,721
Debt and other borrowings........... 2,462,084 (1,804,598)(E) -- 657,486
Other liabilities................... 309,781 (78,820)(F) (9,696)(H) 221,265
---------- ----------- --------- ----------
Total liabilities.............. 4,631,923 (3,692,755) (9,696) 929,472
---------- ----------- --------- ----------
Company-obligated mandatorily
redeemable preferred securities of
subsidiary trust holding solely
subordinated debentures of the
Company........................... 100,000 -- -- 100,000
STOCKHOLDERS' EQUITY
Class A preferred stock............. 1,010 -- -- 1,010
Class B preferred stock............. -- -- -- --
Class A common stock................ 179 -- (77)(I) 102
Class B common stock................ 256 -- (110)(I) 146
Additional paid-in capital, net..... 309,250 -- (147,288)(I) 161,962
Retained earnings, net.............. 541,383 530,000(G) (656,136)(I) 415,247
Less: Treasury stock at cost,....... (42) -- (42)
---------- ----------- --------- ----------
Total stockholders' equity..... 852,036 530,000 (803,611) 578,425
---------- ----------- --------- ----------
Total liabilities and
stockholders' equity......... $5,583,959 $(3,162,755) $(813,307) $1,607,897
========== =========== ========= ==========
Common shares outstanding at end of
period............................ 42,198 22,027
Book value per common share......... 18.06 23.92
</TABLE>
7
<PAGE> 9
ADVANTA CORP. AND SUBSIDIARIES
NOTES TO PRO FORMA UNAUDITED CONSOLIDATED BALANCE SHEET
AS OF DECEMBER 31, 1996
- ---------------
(A) Represents the contribution to Fleet LLC of assets and liabilities of
Advanta consumer credit card business (the "Business") had the Transaction
occurred at the balance sheet date.
(B) Represents (1) the contribution to Fleet LLC of cash, federal funds sold and
interest bearing deposits dedicated to the Business and (2) a $5 million
redemption of federal funds sold that were not dedicated to the Business.
(C) Represents (1) the contribution to Fleet LLC of property and equipment
dedicated to the Business and (2) approximately $8 million of fixed assets
to be contributed to Fleet LLC that were not dedicated to the Business.
(D) Represents (1) the contribution to Fleet LLC of other assets dedicated to
the Business except for $10.2 million of Credit Insurance Business related
assets that will not be contributed to Fleet LLC and (2) Advanta's
membership interest in Fleet LLC valued at $20 million.
(E) Represents the contribution to Fleet LLC of deposits, debt and other
borrowings by an amount equaling total assets of the Business plus an
additional $510 million of liabilities representing a portion of the premium
received by Advanta, less other liabilities contributed to Fleet LLC in
accordance with the Contribution Agreement.
(F) Represents the contribution to Fleet LLC of (1) other liabilities related to
the Business had the Transaction occurred at the balance sheet date and (2)
$34.7 million of accrued interest payable on the deposits, debt and other
borrowings discussed in (E) above, net of (3) $11.1 million of Credit
Insurance Business related liabilities that will not be contributed to Fleet
LLC.
(G) Represents the increase in retained earnings resulting from the gain on the
Transaction of $530 million, consisting of liabilities in excess of assets
contributed of $510 million and Advanta's membership interest in Fleet LLC
valued at $20 million.
(H) Represents the sale of $813 million of federal funds sold, interest-bearing
deposits and investments to purchase the Common Shares, the SAILS Depositary
Shares and options to purchase Common Shares, and the tax benefit related to
the tender of Common Shares underlying options granted under the Advanta's
stock option plans. The $813 million of investments sold reflects $850
million of shares at the applicable purchase price per share primarily net
of the difference between $40 per share and the option exercise price of
options anticipated to be exercised in connection with the Offer.
(I) Represents (1) the purchase of approximately 7.7 million Class A Common
Stock and approximately 11.0 million Class B Common Stock at $40 per share;
(2) the purchase of approximately 1.1 million SAILS Depositary Shares at
$32.80 per share and (3) the tender of approximately 1.4 million of Common
Shares underlying options at a cost to the Company of the amount by which
$40 per share exceeds the option exercise price.
8
<PAGE> 10
(c) Exhibits.
<TABLE>
<C> <S>
2.1 Contribution Agreement, dated as of October 28, 1997 by and
between Advanta Corp. and Fleet Financial Group, Inc.,
incorporated herein by reference to Exhibit (c)(2) to
Advanta's Schedule 13E-4, dated January 20, 1998.
2.2 First Amendment to the Contribution Agreement, dated as of
February 20, 1998, by and among Advanta Corp., a Delaware
corporation, Fleet Financial Group, Inc., a Rhode Island
corporation, and Fleet Credit Card, LLC, a Rhode Island
limited liability company.
99.1 Press Release, dated February 21, 1998, incorporated herein
by reference to Exhibit 99.1 to Advanta's Current Report on
Form 8-K, dated February 23, 1998.
99.2 Press Release, dated February 23, 1998, incorporated herein
by reference to Exhibit 99.2 to Advanta's Current Report on
Form 8-K, dated February 23, 1998.
</TABLE>
9
<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ADVANTA CORP.
Date: March 6, 1998 By: /s/ ELIZABETH H. MAI
----------------------------------
Name: Elizabeth H. Mai
Title: Senior Vice President,
Secretary and General Counsel
<PAGE> 12
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------- -----------
<C> <S> <C>
2.1 Contribution Agreement, dated as of October 28, 1997, by and
between Advanta Corp. and Fleet Financial Group, Inc.,
incorporated herein by reference to Exhibit (c)(2) to
Advanta's Schedule 13E-4, dated January 20, 1998. ..........
2.2 First Amendment to the Contribution Agreement, dated as of
February 20, 1998, by and among Advanta Corp., a Delaware
corporation, Fleet Financial Group, Inc., a Rhode Island
corporation, and Fleet Credit Card, LLC, a Rhode Island
limited liability company. .................................
99.1 Press Release, dated February 21, 1998, incorporated herein
by reference to Exhibit 99.1 to Advanta's Current Report on
Form 8-K, dated February 23, 1998. .........................
99.2 Press Release, dated February 23, 1998, incorporated herein
by reference to Exhibit 99.2 to Advanta's Current Report on
Form 8-K, dated February 23, 1998. .........................
</TABLE>
<PAGE> 1
Exhibit 2.2
FIRST AMENDMENT TO THE CONTRIBUTION AGREEMENT
First Amendment to the Contribution Agreement (the "Amendment") dated as of
February 20, 1998 by and among Advanta Corp., a Delaware corporation (the
"Company"), Fleet Financial Group, Inc., a Rhode Island corporation ("Fleet"),
and Fleet Credit Card, LLC, a Rhode Island limited liability company (the
"LLC").
WHEREAS, the Company and Fleet are parties to that certain Contribution
Agreement dated as of October 28, 1997 by and between Advanta and Fleet (the
"Agreement"); and
WHEREAS, Advanta and Fleet desire to amend certain provisions of the
Agreement upon the terms and conditions set forth in this Amendment; and
WHEREAS, capitalized terms used herein but not otherwise defined shall have
the meaning ascribed to such terms in the Contribution Agreement.
NOW, THEREFORE, in consideration of the foregoing and the agreements
contained herein, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. RBS Advanta.
(a) Section 1.05 of the Agreement is hereby amended and restated in its
entirety as follows:
Section 1.05
(a)(i) Transfer of Company's Interest in RBS Advanta. Fleet and the
Company acknowledge and agree that the Company Contributed Assets include the
Company's economic and beneficial interest in Advanta International Corporation
I ("AIC I") and Advanta International Corporation II ("AIC II"), each a Delaware
corporation that is a wholly-owned subsidiary of the Company, including without
limitation the Company's right to all profits, losses and distributions from
such interest accruing from and after the Closing Date (such interest being
referred to herein as the "AIC Shares").
(ii) As more fully set forth in Section 1.05(iv) below, the Company
shall contribute the AIC Shares by transferring and assigning, without recourse
(a) all of its economic and beneficial interest in AIC I and AIC II, and (b) all
of its right, title and interest in and to the Term Subordinated Loans existing
as of the Closing Date between the Company and each of AIC I and AIC II accruing
from and after the Closing Date (the "AIC Loans"). As more fully set forth in
Section 1.05(iii) below and as a result of the Company's contribution of all of
its economic and beneficial interest in AIC I and AIC II, the Company
Transferred Liabilities shall
<PAGE> 2
include all of the Company's and its Affiliates' obligations and liabilities
under (A) the Joint Venture Agreement of RBS Advanta (f/k/a Roboscot (15)), an
unlimited company organized under the Companies Act 1985, registered in
Scotland (No. 157256) ("RBS Advanta"), dated effective May 24, 1995, among,
inter alia, the Company, Advanta UK and the Royal Bank of Scotland (the "Joint
Venture Agreement") including without limitation, its obligations to make
capital contributions to RBS Advanta, and (B) any document or agreement
relating thereto.
(iii) Pursuant to the Articles of Association of RBS Advanta, the
consent of the other member of RBS Advanta is required to transfer the shares of
RBS Advanta held by Advanta UK and upon notice of transfer, such other member
may exercise its right to purchase such shares (the "RBS Shares"). Fleet and
the Company hereby agree that upon the request of Fleet, the Company shall cause
Advanta UK to give the applicable notice to RBS Advanta to transfer the RBS
Shares to the LLC. If consent to such transfer is obtained after the Closing
Date, the RBS Advanta Shares shall be transferred to the LLC. The Closing
Balance Sheet shall reflect the value of the AIC Shares as a Company Contributed
Asset at the value for the RBS Shares on the Closing Date calculated in
accordance with Schedule 1.06(g). If the RBS Shares are acquired by any person
other than the LLC pursuant to the provisions of the Articles of Association of
RBS Advanta or if any other payment is made subsequent to the Closing Date to
Advanta UK in respect of such shares, the Company will cause such amounts, net
of applicable Taxes of the Company or its Affiliates in respect thereof, if any,
to be paid to the LLC promptly after receipt thereof. If RBS Advanta gives
notice to the Company or any of the Company's Affiliates of a need for
additional capital, including without limitation Tier II Capital, subsequent to
the Closing Date, the Company shall promptly deliver such notice to the LLC and
shall, at the sole cost and expense of the LLC, take such actions in response to
the request for capital as the LLC shall direct.
(iv) Effective as of and from the Closing Date, the Company grants
unto the LLC a security interest in (A) all of the outstanding shares of capital
stock of AIC I and AIC II (the "Shares") and (B) all of the outstanding shares
of capital stock of Advanta UK (the "UK Shares"), to secure the repayment of the
AIC Loans and to reflect the interest of the LLC in the Shares and the UK
Shares, and does hereby waive any presentment or notice of presentment with
respect to realization of the security interest in the Shares and the UK Shares.
(v) The Company shall cause the designees of Advanta UK on the Board
of Directors of RBS Advanta to be removed as promptly after the Closing Date as
practicable and shall use its best efforts to cause to be elected to the Board
of Directors of RBS Advanta the designees of the LLC effective as promptly after
the Closing Date as practicable.
(b) Section 10.01(a) of the Agreement is hereby
amended by inserting the following provision at the end of Section 10.01(a):
"(vi) arising out of the operation of AIC I, AIC II and Advanta UK
prior to the Closing Date, and arising out of the operation of AIC I,
AIC II and Advanta UK following the Closing Date, but only to the
extent arising
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<PAGE> 3
from the affirmative action of the Company or any of its Affiliates
relating such operations not requested or consented to in writing by
Fleet but excluding from such indemnity any Losses related in any
manner to or arising out of the transfer of the Company's interest in
RBS Advanta pursuant to this Agreement, the operation of AIC I, AIC II
and Advanta UK, if such Losses arise as a result of the operation of
RBS Advanta or the AIC Loans."
2. Closing Balance Sheet.
(a) Section 1.06 of the Agreement is hereby amended and restated to read
in its entirety as follows:
"Section 1.06 Closing Balance Sheet Confirmation.
(a) No later than the Closing Date, the Company shall deliver to Fleet its
good faith estimate of the Closing Balance Sheet ("Estimated Closing Balance
Sheet"), which Estimated Closing Balance Sheet shall demonstrate that the book
value of the Company Transferred Liabilities over the Company Contributed
Assets equals the Agreed Deficit. In addition, the Company shall cause to be
delivered therewith a certificate of the Company signed on its behalf by the
chief financial officer of the Company, confirming that the Estimated Closing
Balance Sheet was prepared in accordance with the provisions of Section
1.06(g). The interest bearing liabilities which are included in the Company
Transferred Liabilities at Closing shall be subject to the conditions set forth
on Schedule 1.06(a). The Estimated Closing Balance Sheet submitted by the
Company to Fleet shall include a schedule of the interest bearing liabilities
to be contributed by the Company in substantially the form of Exhibit A
attached to Schedule 1.06(a), which shall detail the outstanding balances by
liability type, rate and maturity and demonstrate that the characteristics of
the interest bearing liabilities to be contributed by the Company are
substantially no less favorable than the characteristics of the liabilities set
forth in Schedule 1.06(a). Notwithstanding the foregoing, the Managed
Receivables, the Agreed Deficit and the Gain Receivable on Securitized Credit
Cards referred to in Exhibit B to Schedule 1.06(g) shall be computed as of the
Specified Date. For all purposes under the Agreement, the Specified Date shall
mean the Closing Date.
(b) The term "Agreed Deficit" shall mean five hundred ten million dollars
($510,000,000), plus the Special Adjustment, but minus the Agreed Adjustment,
if any (the parties acknowledge and agree that the Agreed Adjustment may be an
amount which is less than zero, in which event the Agreed Deficit would equal
the sum of five hundred ten million dollars ($510,000,000) plus the Special
Adjustment plus the absolute value of the Agreed Adjustment). For the purposes
of computing the Agreed Deficit, Managed Receivables shall include the pro rata
portion of the monthly bankruptcy charge offs; provided that (i) no such
balances shall otherwise be included in the Managed Receivables balance, and
(ii) such charge offs are recorded in the February Adjusted Income Statement.
-3-
<PAGE> 4
(b)(1) The term "Special Adjustment" shall mean the sum of
the balances of general ledger accounts 152628, 152611 and 152616.
(c) The "Agreed Adjustment" shall be that amount which is the sum of the
Volume Adjustment and the Yield Adjustment.
(d) The Volume Adjustment (which may be less than zero as noted in Section
1.06(b)) means that amount which is (i) ($12,100,000,000 minus the amount of
the Managed Receivables as of the Specified Date) multiplied by (ii) 0.0438.
(e) The Yield Adjustment (which may be less than zero as noted in Section
1.06(b)) shall be equal to the product of (A) (i) the amount of the Managed
Receivables with Introductory Rate Balances as of the Specified Date minus (ii)
$2,192,520,000 multiplied by (B) 0.5 multiplied by (C) 0.0438. For example, if
on the Specified Date the percentage of Managed Receivables with Introductory
Rates Balances equaled 15% and the amount of Managed Receivables was equal to
$12,100,000,000 then the Yield Adjustment would be equal to:
($12,100,000,000 x .15 - $2,192,520,000) x .5 x 0.0438 = - $8,267,688 (Yield
Adjustment)
In such example, the Agreed Deficit would equal $518,267,688 plus the
amount of the Special Adjustment.
(f) As promptly as practicable, but in no event later than April 30, 1998,
the Company shall prepare and deliver to the LLC and Fleet the pro forma
balance sheet of the Business as of the close of business on February 28, 1998,
subject to the provisions of Section 1.02, but without giving effect to the
transactions occurring at the Closing (the "Closing Balance Sheet"), together
with the unqualified report of Arthur Andersen 11LLP ("Company's Auditor") on
the Closing Balance Sheet, and a calculation in reasonable detail of the Volume
Adjustment, the Yield Adjustment, the Agreed Adjustment and the Agreed Deficit
together with a certificate of the Company signed on its behalf by the Chief
Financial Officer of the Company, confirming that such calculations were made
in accordance with the terms of this Agreement. The report of the Company's
Auditor shall be made to the Company, Fleet and the LLC and shall be to the
effect that (i) the Closing Balance Sheet (A) has been prepared therein in
conformity with the terms of this Agreement, including the provisions of
Section 1.06(g) hereof; (B) was prepared in conformity with GAAP (except as set
forth in Schedule 1.06(g)), applied on a consistent basis with the Company's
past practice; and (C) presents fairly the financial position of the Business
as of the close of business at the Closing Date, subject to the provisions of
Section 1.02, and (ii) the audit by the Company's Auditor was conducted in
accordance with generally accepted auditing standards. In addition, the
Company's Auditor shall perform such tests as are appropriate to confirm the
accuracy of the interest bearing liabilities contributed by the Company as
compared to the schedule of interest bearing liabilities submitted by the
Company pursuant to Section 1.06(a) above. In the event that the Company's
Auditor does not so confirm the characteristics of the interest bearing
liabilities, the LLC and the Company shall determine in good faith such amount
as is necessary, consistent with the provisions of Schedule 1.06(a), to
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<PAGE> 5
reimburse the LLC for any such failure to so conform to such characteristics.
In the event the LLC and the Company can not resolve any dispute as to the
amount of such reimbursement, such dispute will be resolved in accordance with
the procedures set forth below. The Company shall pay the amount of any
required reimbursement, if any, to the LLC promptly after determination
thereof. The Estimated Closing Balance Sheet shall be reviewed by the Company
on February 23, 1998 and on March 16, 1998 to determine if the Company
Transferred Liabilities should be adjusted to more closely approximate the
Company Contributed Assets and the Agreed Deficit; to the extent that an
adjustment is appropriate, taking into account then available information, the
adjustment shall be made by adding or subtracting Company Transferred
Liabilities. To the extent available, the Company and the LLC will, pursuant
to that certain Letter Agreement (the "Letter Agreement"), dated February 19,
1998, among the Company, Advanta National Bank, Fleet National Bank and Morgan
Stanley & Co., Incorporated, use the repurchase agreements created by the
Company prior to February 20, 1998 as the liabilities to effectuate the
adjustments. The Company and Fleet shall cause Advanta National Bank and Fleet
National Bank, respectively, to assign and/or reassign the Subject Transactions
(as defined in the Letter Agreement) and to substitute securities in connection
with any such assignment(s) and/or reassignment(s), all as contemplated in the
Letter Agreement.
(g) The Closing Balance Sheet shall be prepared in accordance with the
books and records of the Company and the Company Contributors and in conformity
with the provisions of, and pursuant to the procedures described on, Schedule
1.06(g) hereto.
(h) After the Closing Date, the LLC shall permit the Company and the
Company's Auditor reasonable access upon reasonable notice and during normal
business hours to the deeds, documents and contracts and books of account,
records, files, invoices and other data associated with, necessary to or used
in the Business as conducted on or before the Closing Date. The Company and
the LLC shall direct the appropriate personnel, regardless of whether employed
by the Company or the LLC, to provide the necessary financial information
regarding the Business as promptly as practicable after the Closing Date to the
Company and the Company's Auditor. Fleet shall, within forty-five (45) days
after its receipt of the Closing Balance Sheet, advise the Company in writing
(an "Objection Notice") in reasonable detail of the amounts and descriptions of
adjustments, if any, which Fleet believes are necessary to be made to the
Closing Balance Sheet or the Agreed Deficit in order to comply with the
provisions of this Agreement and Section 1.06(g) hereof. In the event that
Fleet fails to deliver an Objection Notice within the time period specified
herein, the pro forma Closing Balance Sheet and the calculation of the Agreed
Deficit delivered by the Company pursuant to Section 1.06(f) hereof shall be
deemed to be the Closing Balance Sheet and Agreed Deficit for all purposes of
this Agreement.
(i) In the event that Fleet shall deliver an Objection Notice pursuant to
Section 1.06(h) hereof, Fleet and the Company shall attempt, in good faith, to
resolve their differences within the thirty day period following the receipt by
the Company of the Objection Notice. In the event the Company and Fleet are
not able to resolve their good faith differences within such thirty day period
with respect to any line item of the Closing Balance Sheet, but the differences
with respect to any such line item are less than two hundred fifty thousand
dollars
-5-
<PAGE> 6
($250,000), then such line item shall be deemed to be the average of the
amounts specified by the Company and Fleet, respectively, and the differences
on such line item shall be deemed to be resolved. In the event that the
Company and Fleet are able to resolve their differences within such thirty day
period (including any resolution pursuant to the immediately preceding
sentence), the Closing Balance Sheet and Agreed Deficit agreed to by Fleet and
the Company pursuant to this Section 1.06(i) shall be deemed to be the Closing
Balance Sheet and Agreed Deficit for all purposes of this Agreement. In the
event that all of the differences are not resolved within such thirty day
period, but the effect of such differences on the Agreed Deficit is less than
three million dollars ($3,000,000), in the aggregate, then all remaining
differences shall be resolved in the same manner set forth above with respect
to differences of less than $250,000 and the Closing Balance Sheet and the
calculation of the Agreed Deficit, as so adjusted, shall be deemed to be the
Closing Balance Sheet and the Agreed Deficit for all purposes of this
Agreement.
(j) In the event that the Company and Fleet are unable to resolve all
differences with respect to the Closing Balance Sheet or Agreed Deficit in the
manner set forth in Section 1.06(i) hereof within the thirty (30) days referred
to in Section 1.06(i) hereof, then the issues remaining unresolved shall be
determined by Coopers & Lybrand L.L.P. (the "Independent Firm") as follows:
(1) Within fifteen (15) days following retention of the Independent
Firm, the Company and Fleet shall present or cause to be presented the disputed
issue or issues that must be resolved with respect to the Closing Balance Sheet.
(2) The Company and Fleet shall use their commercially reasonable
efforts to cause the Independent Firm to render its decision as soon as is
reasonably practicable, including, without limitation, prompt compliance with
all reasonable requests by the Independent Firm for information, papers, books,
records and the like; provided that (i) the Company and Fleet agree that the
scope of the retention of the Independent Firm shall be limited to resolving the
disputed issues presented to it and matters related thereto and (ii) in no event
shall the resolution of any issue be outside the parameters or amounts within
which the issues were determined by each of the Company and Fleet. All
decisions of the Independent Firm with respect to the Closing Balance Sheet and
the Agreed Deficit shall be final and binding upon Fleet, the Company and their
respective Affiliates, and the Closing Balance Sheet and the Agreed Deficit as
determined in accordance with the provisions of this Section 1.06(j) shall be
deemed to be the Closing Balance Sheet and the Agreed Deficit for all purposes
of this Agreement.
(k) With respect to the performance of their respective functions pursuant
to this Section 1.06, (i) the Company shall bear all of the fees, costs,
disbursements and other expenses of the Company's Auditor; (ii) Fleet shall
bear all of the fees, costs, disbursements and other expenses of its auditor;
and (iii) the Company, on the one hand, and Fleet, on the other hand, shall
share equally all fees, costs, disbursements and other expenses of the
Independent Firm.
-6-
<PAGE> 7
(l) If the value of Company Transferred Liabilities over the Company
Contributed Assets as reflected on the Closing Balance Sheet (the "Net
Deficit") exceeds the Agreed Deficit, then the Company shall pay to the LLC in
the manner and with interest as provided in Section 1.06(n), the amount of such
excess.
(m) If the Agreed Deficit exceeds the Net Deficit, then the LLC shall pay
the Company in the manner and with interest as provided in Section 1.06(n), the
amount of such excess.
(n) Any payment pursuant to Sections 1.06(l) or 1.06(m) hereof shall be
made at a mutually convenient time and place within ten (10) days after the
Closing Balance Sheet has been finally determined, by delivery to the Company
or the LLC, as the case may be, of a wire transfer of immediately available
funds from such party to a designated account of such other party. The amount
of any payment to be made pursuant to Sections 1.06(l) or 1.06(m) shall bear
interest from and including the Closing Date to but excluding the date of
payment at a rate per annum equal to LIBOR as of the Closing Date. Such
interest shall be payable at the same time as the payment to which it relates
and shall be calculated on the basis of a year of 360 days and the actual
number of days elapsed."
3. Adjustment for February 1998 Income. The Agreement is hereby amended by
adding a new Section 1.07 as follows:
Section 1.07 Adjustment for February 1998 Net Income of the Business.
(a) No later than March 16, 1998, the Company shall also cause to be
prepared and delivered to Fleet, the Advanta Credit Card Pre-Tax Income
Statement for February, 1998 (the "February Pre-Tax Income Statement"),
prepared in accordance with the books and records of the Company and the Company
Contributors and reflecting the ordinary course operating pre-tax net income on
a managed assets basis of the Business for the entire month of February, 1998.
Appropriate personnel, whether the employees of the Company or the LLC, shall be
directed to prepare the February Pre-Tax Income Statement.
(b) No later than March 16, 1998, the Company shall also cause to be
prepared and delivered to Fleet the February Adjusted Pre-Tax Income Statement.
The "February Adjusted Pre-Tax Income Statement" shall mean the February Pre-Tax
Income Statement, adjusted as follows:
(i) Expenses reflecting the Company's corporate
overhead allocation to the Business shall be
eliminated;
(ii) Any provision for loan losses in excess of
the February, 1998 charge-off amount shall be
eliminated;
-7-
<PAGE> 8
(iii) Any actual expense reflecting employee
compensation (not including incentive
accruals which are being paid by Fleet) shall
be eliminated;
(iv) The Fleet Interest Expense Amount shall be
added to interest expense; and
(v) The cost of capital shall be eliminated.
(c) The "Fleet Interest Expense" amount shall be calculated as follows:
Fleet Average Daily Funding Amount x LIBOR x 8/365
The Fleet Average Daily Funding Amount shall mean the average of all amounts
provided by Fleet or its subsidiaries to the Company and its subsidiaries to
fund the Company Contributed Assets and the Company Transferred Liabilities
from the close of business on February 20, 1998 to the close of business on
February 28, 1998. Appropriate personnel, whether the employees of the Company
or the LLC, shall be directed to prepare the February Adjusted Pre-Tax Income
Statement.
(d) No later than 30 days following its receipt of the February Pre-Tax
Income Statement and the February Adjusted Pre-Tax Income Statement, Fleet shall
advise the Company in writing (the "Notice") in reasonable detail of the amounts
and descriptions of adjustments, if any, that Fleet believes are necessary to be
made to the February Adjusted Pre-Tax Income Statement. In the event that Fleet
fails to deliver the notice within the time period specified herein, the
February Adjusted Pre-Tax Income Statement delivered by the Company pursuant to
Section 1.07(b) hereof shall be deemed to be the February Pre-Tax Income
Statement for all purposes of this Agreement.
(e) In the event that Fleet shall deliver the Notice, Fleet and the Company
shall attempt to resolve their differences in accordance with the provisions of
Section 1.06(i) of this Agreement; provided however, that for purposes of this
Section 1.07(d), the last sentence of Section 1.06(i) shall be ignored by the
parties hereto.
(f) In the event that the Company and Fleet are unable to resolve their
differences with respect to the February Adjusted Pre-Tax Income Statement, then
the issues remaining shall be determined by the Independent Firm in accordance
with the provisions of Sections 1.06(j) and 1.06(k) of this Agreement.
(g) Within 5 days of the determination of February Adjusted Net Income,
Advanta shall pay to the LLC, in the manner and with interest as provided in
Section 1.06(n) hereof, an amount equal to:
(1) February Adjusted Net Income x 8/28; plus
(2) the Fleet Interest Expense Amount; minus
-8-
<PAGE> 9
(3) the Agreed Deficit x the three month LIBOR
rate x 8/365.
For purposes hereof, the "February Adjusted Net Income" shall be that amount
shown as net income on the February Adjusted Pre-Tax Income Statement.
4. Strategic Business Assets. The following provisions are hereby inserted
into the Agreement at the end of Section 6.24 thereof:
"(a) With respect to the View Card, the Company will initially retain any
and all patent rights therein (the "Rights") and grant a royalty free license to
the LLC in the Rights on terms reasonably agreeable to the parties which would
give the LLC the exclusive right to use the Rights for the period beginning on
the Closing Date and ending February 20, 2003 in connection with consumer credit
cards and a shared license to use the Rights for ATM, debit, payment, telephone,
magnetic stripe and integrated circuit chip payment cards and prepaid cards and
stored value cards and smartcards which are related to consumer credit cards
(collectively, the "Cards"), and after February 20, 2003, a non-exclusive
royalty free license to use the Rights for consumer credit cards. The Company
may, at its option at any time offer to transfer the Rights to the LLC (the
"Offer"). The LLC may within fifteen days thereafter accept such Offer and if
such Offer is not accepted in such fifteen day period, such offer shall be
conclusively deemed to have been rejected). Promptly after acceptance of such
offer the Company will transfer the Rights to the LLC and the LLC will
concurrently therewith grant to the Company a royalty free license with respect
to the Cards referred to above (which license shall be exclusive except to the
extent the Rights are also used by the LLC for such Cards), an exclusive license
with respect to other services and items and a shared license to use on an
exclusive basis (except to the extent the Rights are also used by the LLC in
connection with consumer credit cards) to use the Rights after February 20, 2003
in connection with consumer credit cards. The then owner of the patent shall
have the obligation to pay all costs and expenses of all development work
relating thereto and all legal fees relating to obtaining and maintaining the
patent rights. At any time after the Offer is rejected by the LLC, the Company
may abandon its ownership of the Rights and have no further obligation with
respect thereto.
(b) With respect to Customer Service Online (excluding the web site
relating to the Company) any software and web site material developed through
February 20, 1998 will be shared between the parties, except that the LLC will
have exclusive rights to use such software in connection with consumer credit
cards.
(c) With respect to BLT Technologies the Company may issue phone cards and
all training, learning and material developed through February 20, 1998 with
respect to BLT will be shared with the Company at no cost to the Company.
(d) With respect to the identification of Destiny on Annex 8 to Schedule 1
to the Contribution Agreement, such identification is hereby revised to read as
follows: "Destiny - Software for credit card fulfillment systems developed
through February 20, 1998 relating to
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<PAGE> 10
direct mail offerings of credit cards, including authentication and data entry
systems, as well as balance transfers and other marketing and message options."
6. Schedule 1.06(g). Exhibit "A" to Schedule 1.06(g) is hereby replaced by
Exhibit A attached hereto.
7. The Schedules to the Contribution Agreement are hereby amended and restated
to read in their entirety as "such Schedules are attached to this Amendment."
In addition, all references to "Einstein" are hereby removed from Annex A-8 to
Schedule 1.
8. Exhibit B attached hereto, captioned "Activity: Archived Records" is hereby
incorporated by reference into the Agreement.
9. The LLC hereby joins in the Agreement, as amended hereby.
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IN WITNESS WHEREOF, the parties hereto have executed this document as of the
date first above written.
ADVANTA CORP.
By /s/ Elizabeth H. Mai
-----------------------------------------
Title: Senior Vice President,
Secretary and General Counsel
FLEET FINANCIAL GROUP, INC.
By /s/ Brian T. Moynihan
---------------------------------
Title: Senior Vice President
FLEET CREDIT CARD, LLC
By FLEET CREDIT CARD HOLDINGS, INC., its managing member
By /s/ Joseph Saunders
-----------------------------------------
Title: Executive Vice President
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