EXHIBIT 99.3
XL VOTING AGREEMENT
VOTING AGREEMENT, dated as of January 17, 2000 (this "Agreement"), among Risk
Capital Holdings, Inc., a Delaware corporation ("RCHI"), Folksamerica Holding
Company, Inc., a New York corporation ("FHC"), and Xxxxxxxx Investments Inc.
("GI") and XL Capital Ltd, a Cayman Islands exempted limited company ("XL" and
together with GI, the "Stockholder").
WHEREAS, on the date hereof, RCHI and Risk Capital Reinsurance Company, a stock
insurance company organized under the laws of the State of Nebraska and a wholly
owned subsidiary of RCHI ("RCRe," and together with RCHI, the "Seller") propose
to enter into an Asset Purchase Agreement dated as of the date hereof (as such
agreement may be amended in immaterial respects, the "Asset Purchase Agreement";
capitalized terms not otherwise defined herein being used herein shall have the
meanings assigned to such terms in the Asset Purchase Agreement) with FHC and
Folksamerica Reinsurance Company, a stock insurance company organized under the
laws of the State of New York ("FRC," and together with FHC, the "Purchaser"),
pursuant to which Purchaser will purchase and the Seller will sell the assets
comprising the Assumed Business;
WHEREAS, as of the date hereof, the Stockholder owns (both beneficially and of
record) 4,755,000 shares of common stock of RCHI (the "Common Stock");
WHEREAS, as an inducement for the Purchaser to enter into the Asset Purchase
Agreement, the Stockholder has agreed to enter into this Agreement governing the
voting of the shares of Common Stock owned as of the date hereof and which may
hereafter be acquired by the Stockholder prior to the Termination Date (the
"Shares") and the disposition of the Shares;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
(1) Title; Voting of Shares. a. The Stockholder represents and
warrants that the Shares set forth above are all the
securities of RCHI owned, either of record or beneficially,
by the Stockholder. The Stockholder represents and warrants
that it owns all such Shares free and clear of all security
interests, liens, claims, pledges, options, rights of first
refusal, agreements, limitations on the Stockholder's voting
rights, charges and other encumbrances of any nature
whatsoever, other than the Stock Repurchase Agreement, dated
as of January 17, 1999 ("Repurchase Agreement"), by and
among XL, GI and RCHI pursuant to which RCHI has agreed to
repurchase all of the shares of Common Stock held by XL and
GI on the terms set forth therein, and, except pursuant to
this Agreement, the Stockholder has not appointed or granted
any proxy, which appointment or grant is still effective,
with respect to the Shares.
b. The Stockholder shall, until the Termination Date, cause
the Shares then owned by such Stockholder to be voted at any meeting of the
stockholders of RCHI, at any adjournment thereof or in any consent in lieu of
such a meeting in favor of the Asset Purchase
Agreement and the transactions contemplated thereby. For the purposes of this
Agreement, "Termination Date" shall mean the earliest of (i) the termination of
the Asset Purchase Agreement in accordance with its terms, (ii) the Closing
Date, (iii) the termination of this Agreement by the mutual written agreement
of the parties hereto, (iv) the date on which the Asset Purchase Agreement and
the transactions contemplated thereby shall have been approved by the
affirmative vote of the stockholders of RCHI by the requisite vote in
accordance with applicable law, (v) any material amendment to the Asset
Purchase Agreement, (vi) the closing of the transactions contemplated by the
Repurchase Agreement or (vii) July 31, 2000.
(2) Irrevocable Proxy. Only with respect to the approval of the
Asset Purchase Agreement and the transactions contemplated
thereby and for no other purpose, the Stockholder hereby
grants to, and appoints FHC and the president of FHC, in his
capacity as an officer of FHC, and any individual who shall
hereafter succeed to such office of FHC, and any other
designee of FHC, each of them individually, the
Stockholder's proxy and attorney-in-fact (with full power of
substitution) to vote or act by written consent with respect
to the Shares until the Termination Date. This proxy is
coupled with an interest and shall be irrevocable; provided
that this proxy shall terminate on the Termination Date.
(3) No Disposition or Encumbrance of Shares or Warrants. The
Stockholder hereby covenants and agrees that, until the
Termination Date, the Stockholder shall not, and shall not
offer or agree to, sell, transfer, tender, assign,
hypothecate or otherwise dispose of, or create or permit to
exist any security interest, lien, claim, pledge, option,
right of first refusal, agreement, limitation on the
Stockholder's voting rights, charge or other encumbrance of
any nature whatsoever with respect to, the Shares; provided
that the Stockholder shall be permitted to transfer the
Shares (i) to any wholly owned subsidiary of the
Stockholder that agrees to be bound by the terms of this
Agreement, (ii) to RCHI or any wholly-owned subsidiary of
RCHI, or (iii) to any other person that expressly assumes
and agrees to be bound by this Agreement.
(4) Miscellaneous.
(a) Amendment and Modification. This Agreement may be
amended, modified or supplemented only by written
agreement signed by the parties hereto.
(b) Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
EXECUTED IN AND TO BE PERFORMED IN THAT STATE
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement, as
of the date first written above.
RISK CAPITAL HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and Chief
Operating Officer
FOLKSAMERICA HOLDING COMPANY, INC.
By:
Name:
Title:
Stockholder:
XL CAPITAL LTD
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: EVP, General Counsel & Secretary
XXXXXXXX INVESTMENTS INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Assistant Secretary
