MMRCH VOTING AGREEMENT
VOTING AGREEMENT, dated as of January 10, 2000 (this "Agreement"), among
Risk Capital Holdings, Inc., a Delaware corporation ("RCHI"), Folksamerica
Holding Company, Inc., a New York corporation ("FHC"), and Xxxxx & XxXxxxxx Risk
Capital Holdings, Ltd., a Delaware corporation (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) 1,395,625 shares of common stock of RCHI (the "Common Stock") and
Class A Warrants to purchase 905,397 shares of Common Stock and Class B Warrants
to purchase 1,770,601 shares of Common Stock (collectively, the "Warrants");
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 and Warrants;
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 and the Warrants 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 and Warrants 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, 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.
-2-
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 or (v) 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 and/or Warrants provided, that
the Stockholder shall be permitted to transfer the Shares and/or Warrants to any
wholly owned subsidiary of the Stockholder that agrees to be bound by the terms
of this Agreement or to RCHI or any wholly-owned subsidiary of RCHI.
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.
-3-
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: /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Sr. Vice President, General
Counsel & Secretary
Stockholder:
XXXXX & XXXXXXXX RISK CAPITAL HOLDINGS, LTD.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman
