Exhibit 10.52 EMPLOYMENT AGREEMENT
AGREEMENT, is made effective
January 1, 2007 (the "Effective Date’) and entered into
as of the 9th day of January, 2007 by and between NYMAGIC, INC., a
New York corporation (together with its successors and assigns, the
"Company"), and George R. Trumbull, III (the "Executive"). W
I T N E S S E
T H: WHEREAS, the
Company desires to continue to employ the Executive pursuant to an
agreement embodying the terms of such employment (this "Agreement")
and the Executive desires to enter into this Agreement and to
accept such employment, subject to the terms and provisions of this
Agreement. NOW, THEREFORE, in
consideration of the premises and mutual covenants contained herein
and for other good and valuable consideration, the receipt of which
is mutually acknowledged, the Company and the Executive
(individually a "Party" and together the "Parties") agree as
follows: 1. Term of
Employment.
The
term of the Executive’s employment under this Agreement shall
commence on the Effective Date and end on December 31, 2007
(the "Term of Employment"), unless terminated earlier in accordance
herewith. 2. Position,
Duties and Responsibilities .
(a)
Generally . The Executive shall serve as Chairman of the
Board of Directors (the "Board") of the Company. For so long as he
is serving on the Board, the Executive agrees to serve as a member
of any committee of the Board to which he is elected. In any and
all such capacities, the Executive shall report only to the Board.
The Executive shall have and perform such duties, responsibilities,
and authorities as are customary for the Chairman of corporations
of similar size and businesses as the Company as they may exist
from time to time and as are consistent with such position and
status. The Executive shall devote approximately twenty
(20) hours per week and his best efforts, abilities,
experience, and talent to the position of Chairman of the Company.
In the event of termination of the Executive’s employment
under this Agreement, the Executive’s membership on the Board
and any committees thereof shall also be terminated effective on
the date of termination of Executive’s employment.
(b)
Other Activities . Anything herein to the contrary
notwithstanding, nothing in this Agreement shall preclude the
Executive from (i) serving on the boards of directors of a
reasonable number of other corporations or the boards of a
reasonable number of trade
associations and/or charitable organizations, (ii) engaging
in charitable activities and community affairs, (iii) managing
his personal investments and affairs, provided that such activities
do not materially interfere with the proper performance of his
duties and responsibilities under this Agreement and
(iv) performing consulting services for Mariner Partners, Inc.
, or any of its successors, affiliates, stockholders or members
(collectively, "Mariner").
(c)
Place of Employment . The Executive’s principal place
of employment shall be the Company’s principal corporate
office. 3. Base Salary .
The
Executive shall be paid an annualized salary, payable in accordance
with the regular payroll practices of the Company, of $250,000
("Base Salary"). 4. Annual
Incentive Awards .
The
Executive shall participate in the Company’s annual incentive
compensation plan with a target Annual Incentive Award opportunity
of 50% of Base Salary and a maximum Annual Incentive Award
opportunity of 100% of Base Salary (the "Annual Incentive Award").
Payment of the Executive’s Annual Incentive Award shall be
made within 2 months of the Company’s fiscal year-end.
5. Long-Term Incentive
Program .
(a)
Grant of Restricted Shares . On the date of the execution of
this Agreement the Executive shall be granted 5,000 Restricted
Shares under the LTIP, which shall vest on December 31, 2007,
contingent upon the Executive’s continued employment with the
Company on that date (the "Restricted Share Grant").
6. Employee Benefit
Programs .
(a)
General Benefits . During the Term of Employment as
Chairman, the Executive shall be entitled to participate in such
employee benefit plans and programs of the Company as are made
available to the Company’s senior level executives or to its
employees generally, as such plans or programs may be in effect
from time to time, including, without limitation, health, medical,
dental, long-term disability, travel accident and life insurance
plans.
(b)
Deferral of Compensation . The Executive shall be permitted
to elect to defer receipt, pursuant to written deferral election
terms and forms (the "Deferral Election Forms") consistent with
Section 409A of the Code, as hereinafter defined, of all or a
specified portion of his annual incentive compensation under
Section 4 and his long term incentive compensation under
Section 5; provided, however, that such deferrals shall not
reduce the Executive’s total cash compensation in any
calendar year below the sum of (i) the FICA maximum taxable
wage base plus (ii) the amount needed, on an after-tax basis, to
enable the
2
Executive to pay the 1.45% Medicare tax imposed on his wages in
excess of such FICA maximum taxable wage base.
The
Company and the Executive agree that compensation deferred pursuant
to this Section 6(b) shall be fully vested and nonforfeitable;
however, the Executive acknowledges that his rights to the deferred
compensation provided for in this Section 6(b) shall be no greater
than those of a general unsecured creditor of the Company, and that
such rights may not be pledged, collateralized, encumbered,
hypothecated, or liable for or subject to any lien, obligation, or
liability of the Executive, or be assignable or transferable by the
Executive, otherwise than by will or the laws of descent and
distribution, provided that the Executive may designate one or more
beneficiaries to receive any payment of such amounts in the event
of his death. 7.
Disability .
(a) During
the Term of Employment, the Executive shall be entitled to
disability coverage as described in this Section 7(a). In the
event the Executive becomes disabled, as that term is defined under
the Company’s Long-Term Disability Plan, the Executive shall
be entitled to receive pursuant to the Company’s Long-Term
Disability Plan or otherwise, and in place of his Base Salary, an
amount equal to 60% (or at the rate then applicable) of his Base
Salary, at the annual rate in effect on the commencement date of
his eligibility for the Company’s long-term disability
benefits ("Commencement Date") for a period beginning on the
Commencement Date and ending with the Executive’s attainment
of age 65. If (i) the Executive ceases to be disabled during
the Term of Employment (as determined in accordance with the terms
of the Long-Term Disability Plan), (ii) the position set forth
in Section 2(a) are then vacant and (iii) the Company requests
in writing that he resume such position, he may elect to resume
such position by written notice to the Company within 15 days
after the Company delivers its request. If he resumes such
position, he shall thereafter be entitled to his Base Salary at the
annual rate in effect on the Commencement Date and, for the year he
resumes his position, a pro rata Annual Incentive Award at 75% of
Base Salary for such year. If he ceases to be disabled during the
Term of Employment and does not resume his position in accordance
with the preceding sentence, he shall be treated as if he
voluntarily terminated his employment pursuant to Section 9(e) as
of the date the Executive ceases to be disabled. If the Executive
is not offered such position after he ceases to be disabled during
the Term of Employment, he shall be treated as if his employment
was terminated Without Cause pursuant to Section 9(c) as of the
date the Executive ceases to be disabled.
(b) The
Executive shall be entitled to a pro rata Annual Incentive Award at
75% of Base Salary for the year in which the Commencement Date
occurs, payable in accordance with the terms of the annual
incentive compensation plan and at the time set forth in
Section 4 hereof. The Executive shall not be entitled to any
Annual Incentive Award with respect to the period following the
Commencement Date. If the Executive recommences his position in
accordance with Section 7(a), he shall be entitled to a pro
rata Annual Incentive Award at 75% of Base Salary for the year he
resumes such position and shall thereafter be entitled to Annual
Incentive Awards in accordance with Section 4 hereof.
3
(c) During
the period the Executive is receiving disability benefits pursuant
to Section 7(a) above, he shall continue to be treated as an
employee for purposes of all employee benefits and entitlements in
which he was participating on the Commencement Date, including
without limitation, the benefits and entitlements referred to in
Section 5 and 6 above, except that the Executive shall not be
entitled to receive any annual salary increases or any new
long-term incentive plan grants or elect to defer compensation
following the Commencement Date.
8. Reimbursement of Business
and Other Expenses: Perquisites .
(a) The
Executive is authorized to incur reasonable expenses in carrying
out his duties and responsibilities under this Agreement, and the
Company shall promptly reimburse him on a monthly basis for all
such business expenses incurred in connection therewith in the
prior month, subject to documentation in accordance with the
Company’s policy. 9.
Termination of Employment .
(a)
Termination Due to Death or Disability . The Term of
Employment shall be terminated immediately upon the death or
disability (as such term is defined under the Company’s
Long-Term Disability Plan) of the Executive. In the event the
Executive’s employment with the Company is terminated due to
his death or disability, the Executive, his estate or his
beneficiaries, as the case may be, shall be entitled to and their
sole remedies under this Agreement shall be:
|
|
(i)
|
|
Base Salary through the date of death or the Commencement Date,
as the case may be, which shall be paid in a single lump sum
15 days following the Executive’s death or the
Commencement Date, as the case may be;
|
|
|
|
|
|
|
|
(ii)
|
|
pro rata Annual Incentive Award at 75% of Base Salary for the
year in which the Executive’s death, or the Commencement
Date, as the case may be, occurs, which shall be payable in a lump
sum 30 days after his death or on the first day following the
six-month anniversary of the Executive’s termination of
employment by reason of disability;
|
|
|
|
|
|
|
|
(iii)
|
|
elimination of all restrictions on any Restricted Share Grants
or deferred stock awards outstanding at the time of his death, or
the Commencement Date, as the case may be;
|
|
|
|
|
|
|
|
(iv)
|
|
immediate vesting of all outstanding stock options and the right
to exercise such stock options as is provided in any stock option
award agreement to which the Executive is a party;
|
4
|
|
(v)
|
|
the balance of any Annual Incentive Awards earned as of
December 31 of the prior year (but not yet paid), which shall
be paid in a single lump sum and in accordance with the terms of
such awards;
|
|
|
|
|
|
|
|
(vi)
|
|
settlement of all deferred compensation arrangements in
accordance with the Executive’s duly executed Deferral
Election Forms; and
|
|
|
|
|
|
|
|
(vii)
|
|
other or additional benefits then due or earned, payable in
accordance with applicable plans and programs of the Company.
|
(b) Termination by the
Company for Cause .
|
|
(i)
|
|
The Term of Employment may be terminated by the Company for
Cause. "Cause" shall mean:
|
|
|
(A)
|
|
The Executive’s willful and material breach of
Sections 10, 11 or 12 of this Agreement;
|
|
|
|
|
|
|
|
(B)
|
|
The Executive is convicted of a felony or pleads guilty or nolo
contendre to an offense that is a felony in the jurisdiction where
committed;
|
|
|
|
|
|
|
|
(C)
|
|
The Executive engages in conduct that constitutes willful gross
neglect or willful gross misconduct in carrying out his duties
under this Agreement, resulting, in either case, in material harm
to the financial condition or reputation of the Company;
|
|
|
|
|
|
|
|
(D)
|
|
The Executive’s failure to cooperate, if requested by the
Board, with any investigation or inquiry into his or the
Company’s business practices, whether internal or external,
including, but not limited to the Executive’s refusal to be
deposed or to provide testimony at any trial or inquiry;
|
|
|
|
|
|
|
|
(E)
|
|
The Executive’s substantial and continued refusal to
perform his duties;
|
|
|
|
|
|
|
|
(F)
|
|
The Executive’s violation of a material Company Policy;
and,
|
5
|
|
(G)
|
|
The Executive engages in any act or series of acts that
constitute misconduct requiring a restatement of the
Company’s financial statements pursuant to the Sarbanes-Oxley
Act of 2002.
|
For purposes of this Agreement, an act or failure to act on the
Executive’s part shall be considered "willful" if it was done
or omitted to be done by him not in good faith, and shall not
include any act or failure to act resulting from any incapacity of
the Executive.
|
|
(ii)
|
|
A termination for Cause shall not take effect unless the
provisions of this paragraph (ii) are complied with. The
Executive shall be given written notice by the Company of its
intention to terminate him for Cause, such notice (A) to state
in detail the particular act or acts or failure or failures to act
that constitute the grounds on which the proposed termination for
Cause is based and (B) to be given within 90 days of the
Company’s learning of such act or acts or failure or failures
to act. The Executive shall have 20 days after the date that
such written notice has been given to him in which to cure such
conduct, to the extent such cure is possible. If he fails to cure
such conduct, the Executive shall then be entitled to a hearing
before the Board at which the Executive is entitled to appear. Such
hearing shall be held within 25 days of such notice to the
Executive, provided he requests such hearing within 10 days of
the written notice from the Company of the intention to terminate
him for Cause. If, within five days following such hearing, the
Executive is furnished written notice by the Board confirming that,
in its judgment, grounds for Cause on the basis of the original
notice exist, he shall thereupon be terminated for Cause.
|
|
|
|
|
|
|
|
(iii)
|
|
In the event the Company terminates the Executive’s
employment for Cause, he shall be entitled to and his sole remedies
under this Agreement shall be:
|
|
|
(A)
|
|
Base Salary through the date of the termination of his
employment for Cause, which shall be paid in a single lump sum
15 days following the Executive’s termination of
employment;
|
|
|
|
|
|
|
|
(B)
|
|
any Annual Incentive Awards earned as of December 31 of the
prior year (but not yet paid), which shall be paid in a single lump
and in accordance with the terms of such awards;
|
6
|
|
(C)
|
|
settlement of all deferred compensation arrangements in
accordance with the Executive’s duly executed Deferral
Election Forms; and
|
|
|
|
|
|
|
|
(D)
|
|
other or additional benefits then due or earned, payable in
accordance with applicable plans or programs of the Company.
|
(c)
Termination Without Cause or Constructive Termination Without
Cause. Prior to a Change in Control . In the event the
Executive’s employment with the Company is terminated without
Cause (which termination shall be effective as of the date
specified by the Company in a written notice to the Executive),
other than due to death, or disability, or in the event there is a
Constructive Termination Without Cause (as defined below), in
either case prior to a Change in Control (as defined below) the
Executive shall be entitled to and his sole remedies under this
Agreement shall be:
|
|
(i)
|
|
Base Salary through the date of termination of the
Executive’s employment, which shall be paid in a single lump
sum 15 days following the Executive’s termination of
employment;
|
|
|
|
|
|
|
|
(ii)
|
|
Base Salary, at the annualized rate in effect on the date of
termination of the Executive’s employment (or in the event a
reduction in Base Salary is a basis for a Constructive Termination
Without Cause, then the Base Salary in effect immediately prior to
such reduction), continued for a period of 12 months following
such termination payable in 12 equal monthly installments beginning
on the first day following the six month anniversary after the date
of the Executive’s termination of employment (the
12 month period following termination of employment is
referred to as the "Severance Period");
|
|
|
|
|
|
|
|
(iii)
|
|
pro rata Annual Incentive Award at 75% of Base Salary for the
year in which termination occurs, payable in a lump sum payable on
the first day following the six-month anniversary after the date of
the Executive’s termination of employment;
|
|
|
|
|
|
|
|
(iv)
|
|
elimination of all restrictions on any Restricted Share Grants
or deferred stock awards outstanding at the time of termination of
employment;
|
|
|
|
|
|
|
|
(v)
|
|
any outstanding stock options, which are unvested, shall vest
and the Executive shall have the right to exercise any vested stock
options as provided in any stock option award agreement to which
the Executive is a party;
|
7
|
|
(vi)
|
|
the balance of any Annual Incentive Awards earned as of
December 31 of the prior year (but not yet paid), which shall
be paid in a single lump sum and in accordance with the terms of
such awards;
|
|
|
|
|
|
|
|
(vii)
|
|
settlement of all deferred compensation arrangements in
accordance with the Executive’s duly executed Deferral
Election Forms;
|
|
|
|
|
|
|
|
(viii)
|
|
continued participation in all medical, health and life
insurance plans at the same benefit level at which he was
participating on the date of the termination of his employment
until the earlier of:
|
|
|
(A)
|
|
the expiration of the Severance Period; or
|
|
|
|
|
|
|
|
(B)
|
|
the date, or dates, he receives equivalent coverage and benefits
under the plans and programs of a subsequent employer;
|
|
|
|
|
provided, however, to the extent that any such benefits cannot
be provided on a non-taxable basis to the Executive and the
provision thereof would cause any part of the benefits to be
subject to additional taxes and interest under Section 409A of
the Code, then the provision of such benefits shall be deferred to
the earliest date upon which such benefits can be provided without
being subject to such additional taxes and interest; and,
|
|
|
|
|
|
|
|
(x)
|
|
other or additional benefits then due or earned, payable in
accordance with applicable plans and programs of the Company.
|
A
termination without "Cause" shall mean the Executive’s
employment is terminated by the Company for any reason other than
Cause (as defined in Section 9(b)) or due to death or
disability.
"Constructive
Termination Without Cause" shall mean a termination of the
Executive’s employment at his initiative as provided in this
Section 9(c) following the occurrence, without the
Executive’s written consent, of one or more of the following
events (except as a result of a prior termination):
|
|
(A)
|
|
a removal of the Executive from or any failure to elect or
re-elect or, as the case may be, nominate the Executive as a member
of the Board;
|
8
|
|
(B)
|
|
an assignment of any duties to the Executive which are
inconsistent with his status as Chairman of the Company;
|
|
|
|
|
|
|
|
(C)
|
|
a decrease in annual Base Salary or target Annual Incentive
Award opportunity;
|
|
|
|
|
|
|
|
(D)
|
|
any other failure by the Company to perform any material
obligation under, or breach by the Company of any material
provision of, this Agreement that is not cured within 30 days
after receipt by the Company of written notice thereof from the
Executive; or
|
|
|
|
|
|
|
|
(E)
|
|
a relocation of the corporate offices of the Company outside a
35-mile radius of New York, New York, or Hartford Connecticut.
|
Notwithstanding anything to
contrary contained in this Agreement, a Constructive Termination
Without Cause shall not have occurred if the occurrence of an event
which would otherwise constitute Constructive Termination Without
Cause under this Agreement arises out of or in connection with any
transaction between the Company and Mariner.
(d)
Termination Upon a Change of Control . The Term of
Employment shall be terminated immediately upon a Change of Control
(as defined below). In the event the Executive’s employment
with the Company is terminated due to a Change of Control, the
Executive shall be entitled to and his sole remedies under this
Agreement shall be:
|
|
(i)
|
|
Base Salary through the date of the Change of Control, which
shall be paid in a single lump sum 15 days following the date
of the Executive’s termination of employment;
|
|
|
|
|
|
|
|
(ii)
|
|
pro rata Annual Incentive Award at 75% of Base Salary for the
year in which the Change of Control occurs, which shall be payable
in a lump sum on the first day following the six month anniversary
of the Executive’s termination of employment;
|
|
|
|
|
|
|
|
(iii)
|
|
elimination of all restrictions on any Restricted Share Grants
or deferred stock awards outstanding on the date of the Change of
Control;
|
|
|
|
|
|
|
|
(iv)
|
|
immediate vesting of all outstanding stock options and the right
to exercise such stock options as provided in any stock option
award agreement to which the Executive is a party;
|
9
|
|
(v)
|
|
the balance of any Annual Incentive Awards earned as of
December 31 of the prior year (but not yet paid), which shall
be paid in a single lump sum and in accordance with the terms of
such awards;
|
|
|
|
|
|
|
|
(vi)
|
|
settlement of all deferred compensation arrangements in
accordance with the Executive’s duly executed Deferral
Election Forms; and
|
|
|
|
|
|
|
|
(vii)
|
|
other or additional benefits then due or earned, payable in
accordance with applicable plans and programs of the Company.
|
A "Change in Control" shall be deemed to have occurred if:
|
|
(i)
|
|
any Person (other than the Company, any trustee or other
fiduciary holding securities under any employee benefit plan of the
Company, or any company owned, directly or indirectly, by the
stockholders of the Company immediately prior to the occurrence
with respect to which the evaluation is being made in substantially
the same proportions as their ownership of the common stock of the
Company) becomes the Beneficial Owner (except that a Person shall
be deemed to be the Beneficial Owner of all shares that any such
Person has the right to acquire pursuant to any agreement or
arrangement or upon exercise of conversion rights, warrants or
options or otherwise, without regard to the sixty day period
referred to in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company or any Significant
Subsidiary (as defined below), representing 50% or more of the
combined voting power of the Company’s or such
subsidiary’s then outstanding securities;
|
|
|
|
|
|
|
|
(ii)
|
|
during any per
|
|
