EXHIBIT 99.4
CONFORMED COPY
VOTING AGREEMENT
AGREEMENT, dated as of February 6, 1999 between The Chubb
Corporation a New Jersey corporation ("Buyer"), and each other person set
forth on the signature pages hereof (each a "Stockholder" and collectively the
"Stockholders"). Capitalized terms used but not separately defined herein
shall have the meanings assigned to such terms in the Merger Agreement (as
defined below).
WHEREAS, in order to induce Buyer and Excalibur Acquisition,
Inc., a Delaware Corporation ("Merger Subsidiary") to enter into an Agreement
and Plan of Merger, dated as of the date hereof (as the same may be amended
from time to time, the "Merger Agreement"), with Executive Risk Inc., a
Delaware corporation (the "Company"), Buyer has requested the Stockholders,
and each Stockholder has agreed, to enter into this Agreement with respect to
shares of common stock, par value $.01 per share, of the Company (the "Common
Stock") that each Stockholder beneficially owns and shares of Common Stock
that each Stockholder may hereafter acquire (collectively, the "Shares").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Grant of Proxy; Voting Agreement
Section 1.1. Voting Agreement. (a) Each Stockholder hereby
irrevocably and unconditionally agrees to vote all Shares that each Stockholder
is entitled to vote, at the time of any vote to approve and adopt the Merger
Agreement, the Merger and all agreements related to the Merger and any actions
related thereto at any meeting of the stockholders of the Company, and at any
adjournment thereof, at which such Merger Agreement and other related
agreements (or any amended version thereof), or such other actions, are
submitted for the consideration and vote of the stockholders of the Company,
in favor of the approval and adoption of the Merger Agreement, the Merger and
the transactions contemplated by the Merger Agreement.
(b) Each Stockholder hereby agrees that it will not vote any
Shares in favor of the approval of any (i) Acquisition Proposal, (ii)
reorganization, recapitalization, liquidation or winding up of the Company or
any other extraordinary transaction involving the Company, (iii) corporate
action the consummation of which would frustrate the purposes, or prevent or
delay the consummation, of the transactions contemplated by the Merger
Agreement or (iv) other matter relating to, or in connection with, any of the
foregoing matters.
Section 1.2. Irrevocable Proxy. Each Stockholder hereby
revokes any and all previous proxies granted with respect to the Shares. By
entering into this Agreement, each Stockholder hereby grants a proxy
appointing Buyer as the Stockholder's attorney-in-fact and proxy, with full
power of substitution, for and in the Stockholder's name, to vote, express,
consent or dissent, or otherwise to utilize such voting power in the manner
contemplated by Section 1.1 above as Buyer or its proxy or substitute shall,
in Buyer's sole discretion, deem proper with respect to the Shares. The proxy
granted by each Stockholder pursuant to this Article 1 is irrevocable and is
granted in consideration of Buyer entering into this Agreement and the Merger
Agreement and incurring certain related fees and expenses. The proxy granted
by each Stockholder shall be revoked upon termination of this Agreement in
accordance with its terms.
ARTICLE 2
Representations and Warranties of Stockholders
Each Stockholder represents and warrants to Buyer that:
Section 2.1. Authorization. The execution, delivery and
performance by Stockholder of this Agreement and the consummation by
Stockholder of the transactions contemplated hereby are within the powers of
Stockholder. This Agreement constitutes a valid and binding Agreement of
Stockholder. If the Stockholder is married and the Shares set forth on the
signature page hereto opposite such Stockholder's name constitute community
property under applicable laws, this Agreement has been duly authorized,
executed and delivered by, and constitutes the valid and binding agreement of,
such Stockholder's spouse.
Section 2.2. Non-Contravention. The execution, delivery and
performance by Stockholder of this Agreement and the consummation of the
transactions contemplated hereby do not and will not, (i) violate any
applicable law, rule, regulation, judgment, injunction, order or decree, (ii)
require any consent or other action by any Person under, constitute a default
under, or give rise to any right of termination, cancellation or acceleration
or to a loss of any benefit to which Stockholder is entitled under any
provision of any agreement or other instrument binding on Stockholder or (iii)
result in the imposition of any Lien on any asset of Stockholder, other than,
in respect of each of clauses (i), (ii) and (iii), any such items as would
not, individually or in the aggregate, prevent or materially impair the
ability of Stockholder to consummate the transactions contemplated by this
Agreement.
Section 2.3. Ownership of Shares. Stockholder is the
beneficial owner of the Shares, free and clear of any Lien and any other
limitation or restriction (including any restriction on the right to vote or
otherwise dispose of the Shares). None of the Shares is subject to any voting
trust or other agreement or arrangement with respect to the voting of such
Shares.
Section 2.4. Total Shares. Except for the Shares, Stockholder
does not beneficially own any (i) shares of capital stock or voting securities
of the Company, (ii) securities of the Company convertible into or
exchangeable for shares of capital stock or voting securities of the Company
or (iii) options or other rights to acquire from the Company any capital
stock, voting securities or securities convertible into or exchangeable for
capital stock or voting securities of the Company.
Section 2.5. Finder's Fees. No investment banker, broker,
finder or other intermediary is entitled to a fee or commission from Buyer or
the Company in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of Stockholder.
ARTICLE 3
Representations and Warranties of Buyer
Buyer represents and warrants to each Stockholder:
Section 3.1. Corporate Authorization. The execution, delivery
and performance by Buyer of this Agreement and the consummation by Buyer of
the transactions contemplated hereby are within the corporate powers of Buyer
and have been duly authorized by all necessary corporate action. This
Agreement constitutes a valid and binding Agreement of Buyer.
ARTICLE 4
Covenants of Stockholders
Each Stockholder hereby covenants and agrees that:
Section 4.1. No Proxies for or Encumbrances on Shares. Except
pursuant to the terms of this Agreement, Stockholder shall not, without the
prior written consent of Buyer, directly or indirectly, (i) grant any proxies
or enter into any voting trust or other agreement or arrangement with respect
to the voting of any Shares or (ii) sell, assign, transfer, encumber or
otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to the direct or indirect sale, assignment,
transfer, encumbrance or other disposition of, any shares of Common Stock
during the term of this Agreement; provided, however, that Stockholder may
sell such number of Shares as may be necessary to satisfy tax liabilities of
such Stockholder. Stockholder shall not seek or solicit any such acquisition
or sale, assignment, transfer, encumbrance or other disposition or any such
contract, option or other arrangement or understanding and agrees to notify
Buyer promptly, and to provide all details requested by Buyer, if Stockholder
shall be approached or solicited, directly or indirectly, by any Person with
respect to any of the foregoing.
Section 4.2. No Solicitation. (a) From the date hereof until
the termination hereof, Stockholder, in its capacity as a Stockholder, will
not, and will authorize or knowingly permit any investment bankers, attorneys,
accountants, consultants and other agents or advisors ("Representatives") of
Stockholder not to, directly or indirectly, (i) take any action to solicit,
initiate or facilitate or encourage the submission of any Acquisition
Proposal, (ii) engage in any negotiations regarding, or furnish to any person
any nonpublic information with respect to, or take any other action knowingly
to facilitate any inquiries or the making of any proposal that constitutes, or
may be reasonably expected to lead to, any Acquisition Proposal or (iii) grant
any waiver or release under any standstill or similar agreement to which
Stockholder is a party with respect to any class of equity securities of the
Company; provided, that notwithstanding any other provision of this
Agreement, Stockholder may take any action in its capacity as a director of the
Company that the Board of Directors would be permitted to take in accordance
with the terms and conditions of the Merger Agreement.
(b) Stockholder will notify Buyer promptly (but in no event
later than 24 hours) upon obtaining any knowledge of any Acquisition
Proposal or of any request for nonpublic information relating to the
Company or any of its Subsidiaries or for access to the properties, books
or records of the Company or any of its Subsidiaries or any request for a
waiver or release under any standstill or similar agreement by any Person
who indicates that it is considering making, or has made, an Acquisition
Proposal. The notice shall state the identity of the offer or and the
material terms and conditions of such proposal, inquiry, contact or
request. Stockholder shall keep Buyer reasonably apprised of any material
development with respect to such proposal. Stockholder shall, and shall
cause its Representatives to, cease immediately and cause to be terminated
all existing discussions or negotiations, if any, with any Persons
conducted heretofore with respect to, or that could reasonably expected to
lead to, any Acquisition Proposal.
ARTICLE 5
Miscellaneous
Section 5.1. Further Assurances. Buyer and each Stockholder
will execute and deliver, or cause to be executed and delivered, all further
documents and instruments and use their reasonable best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations, to
consummate and make effective the transactions contemplated by this Agreement.
Section 5.2. Amendments; Termination. Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed, in the case of an amendment, by each party to
this Agreement or in the case of a waiver, by the party against whom the
waiver is to be effective. This Agreement shall terminate upon the termination
of the Merger Agreement in accordance with its terms.
Section 5.3. Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost
or expense.
Section 5.4. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that no party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto, except that
Buyer may transfer or assign its rights and obligations to any Affiliate of
Buyer.
Section 5.5. Governing Law. This Agreement shall construed in
accordance with and governed by the laws of the State of Delaware.
Section 5.6. Counterparts; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
Section 5.7. Severability. If any term, provision or covenant
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions and covenants of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
Section 5.8. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this
Agreement is not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof in
addition to any other remedy to which they are entitled at law or in equity.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
THE CHUBB CORPORATION
By: /s/ Xxxx X. X'Xxxx
--------------------------------------------
Name: Xxxx X. X'Xxxx
Title: Chairman and Chief Executive Officer
No. of shares of Common Stock
of the Company beneficially
owned as of February 1, 1999:(1)
/s/ Xxxxxx X. Xxxxxx 143,930
---------------------------------
Name: Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxx 485,824
---------------------------------
Name: Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Deutsch 374,275
---------------------------------
Name: Xxxxxx X. Deutsch
/s/ Xxxx X. Xxxxxxx 15,687
---------------------------------
Name: Xxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxx 3,017
---------------------------------
Name: Xxxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxx 16,748
---------------------------------
Name: Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxx 736,147
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
/s/ Xxxxx Xxxxxxxx 8,740
---------------------------------
Name: Xxxxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxx 11,984
---------------------------------
Name: Xxxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxxxx 42,543
---------------------------------
Name: Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx 2,366
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
_______________
(1) Please include shares of Common Stock subject to option.
