SEPARATION, RELEASE AND CONSULTANCY
AGREEMENT
This Separation, Release and Consultancy
Agreement (this “Agreement”), dated September 10,
2009 (the “Effective Date”), is entered into by MARK W.
BLACKMAN, whose address is 80 Deepwood Road, Darien, CT 06820
(“Blackman”) and NYMAGIC, INC. (the
“Company”).
WHEREAS, Blackman and the Company desire to
reach a mutual understanding and acceptance of the terms and
conditions related to Blackman’s separation from employment
with the Company.
NOW, THEREFORE, in consideration of the mutual
promises and covenants herein contained, it is hereby agreed as
follows:
1. Blackman acknowledges that his last day
of employment with the Company and any of its affiliates was
August 11, 2009 (“Separation Date”) and that he
was paid his normal salary and received normal benefits through
such date. Within five days after the Effective Date (assuming no
revocation has taken place), Blackman shall be paid any accrued but
unused personal and vacation days for calendar year 2009 ,
including any carry over vacation days from 2008. In addition, the
Company will pay reasonable business expenses incurred by Blackman
prior to the Separation Date. Since Blackman no longer has access
to his Outlook Account, the Company agrees to assist in the
preparation of such expense report.
2. Blackman agrees to be a consultant for
the Company and its affiliates for a period beginning on the
Effective Date and ending on December 31, 2010 (the
“Termination Date”). In consideration of
Blackman’s acceptance of this Agreement, Blackman, or, in the
event of Blackman’s incapacity or death, his estate, heirs,
designee(s), successors, or assigns, shall receive from the Company
(assuming no revocation has taken place) $50,000 for his services
in 2009, and $100,000 in 2010, with such fees to be paid
bi-monthly. The Company shall also reimburse Blackman (assuming no
revocation has taken place) for any reasonable and necessary
out-of-pocket fees and expenses he incurs in connection with his
duties as a consultant; such reimbursements shall be made in
accordance with company policies and procedures and shall be made
not later than March 15 of the calendar year following the
calendar year in which they were incurred. In addition, Blackman
shall be entitled (assuming no revocation has taken place) to the
vesting of restricted shares of the Company’s common stock
previously awarded to him in accordance with the terms of the
agreement pursuant to which they were granted. Blackman
acknowledges and agrees that he would not receive the payments and
benefits set forth in this Paragraph 2, except for his
execution of this Separation, Release and Consultancy Agreement and
the fulfillment of the promises contained herein.
The payments
and vesting under this Paragraph 2 shall cease immediately
upon a material breach by Blackman of this Agreement.
3. Blackman’s duties as a consultant
for the Company, during the period from the Effective Date until
the Termination Date, shall be:
(a) With
respect to program management agreements:
(i) to
provide advice on the Company’s ARC Aviation Program, only at
the express request of Tim McAndrew; and,
(ii) to
provide advice on the Company’s NTA Trucking Program, only at
the express request of Ed Skoch.
(b) With
respect to litigation support:
(i) to
provide information and support in connection with threatened,
pending or future investigations, arbitrations or litigation
related to matters arising prior to the Separation Date, including
giving depositions and appearing for live interviews and
proceedings, only at the express request of Paul Hart at such times
and places as Mr. Hart shall designate.
(c) With
respect to reinsurance:
(i) to
provide advice on reinsurance renewals and matters related to
previous underwriting business, only at the express request of
George Kallop.
The consulting
services to be provided by Blackman pursuant to this Agreement
shall in so far as is practicable be performed during regular
business hours of the Company during the Company’s customary
work week, Monday through Friday, with the Company providing
Blackman reasonable notice of the tasks which the Company will
request Blackman to perform. Blackman’s duties as a
consultant with respect to the above mentioned program management
agreements shall terminate as to each of them, when a program
management agreement is signed for the applicable program or the
negotiations for the Company’s entry into the program have
terminated. All such consulting services provided in connection
with program management agreements shall be conducted exclusively
by telephone and email as determined by Messrs. McAndrew and
Skoch. Blackman’s consultancy with respect to litigation
support and reinsurance shall terminate at the direction of
Messrs. Hart and Kallop, respectively. Except as provided for
in this Paragraph 3, Blackman shall not initiate contact with
any employee of the Company to discuss any Company
business.
4. The Company will pay Blackman an amount
equivalent to the contribution the Company would have made on his
behalf to the Company’s Profit Sharing Plan & Trust had
he been employed with the Company on December 31, 2009, pro
rated on the basis of his 2009 salary up to the Separation Date,
which payment shall be made at the time the Company makes its 2009
contribution to the Profit Sharing Plan and Trust. In addition,
beginning on the Separation Date, the Company, at its expense,
shall provide Blackman with coverage under the Company’s
health care plans in which Blackman is entitled to participate as
an outside director of the Company, which coverage shall be
equivalent to the coverage provided to the Company’s full
time employees. Blackman shall be entitled to all benefits and
reimbursements available to outside directors under the
Company’s then existing policies and procedures, including
without limitation the award of options to purchase 10,000 shares
of the Company’s common stock. In connection with his
position as a director of the Company Blackman acknowledges that
discussions held and matters considered by the board of directors
and its committees in the performance of their duties are
confidential, and Blackman represents that they will be treated by
him as such, and that he will not discuss them with any non-board
member, except an attorney retained by Blackman to provide legal
advice and who has agreed to keep such information confidential.
Blackman further acknowledges that a breach of this duty of
confidentiality by any director could result in the removal of such
director from the Company’s board of directors.
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5. Blackman acknowledges that the Company
is authorized to open business mail addressed to him in the
employment capacity which he held through the Separation Date. All
other mail addressed to Blackman shall be directed to him at his
residence or office address or elsewhere, as directed by
Blackman.
6. Blackman shall continue to be entitled
to any rights to indemnification under the Company’s or its
affiliates’ directors and officers liability insurance,
Articles of Incorporation and Bylaws until the Termination Date as
if Blackman had continued to be an actively employed senior
executive of the Company for that purpose, and thereafter with
respect to claims relating to the period prior to the Termination
Date.
7. For and in consideration of the payments
and benefits to be made pursuant to Paragraphs 2 and 4 of this
Agreement, Blackman for himself, his heirs, executors,
administrators and assigns (the “Blackman Releasors”),
hereby unconditionally releases, discharges and acquits the
Company, its subsidiaries, parents, affiliates, vendors and
consultants, and each of them, and their respective officers,
directors, shareholders, partners, employees, agents, and
affiliates, and each of them (hereinafter collectively referred to
as “Company Releasees”) from any and all debts,
agreements, promises, liabilities, claims, damages, actions, causes
of action, or demands of any kind or nature including without
limitation all claims arising out of or in connection with his
separation from employment with the Company including wrongful
discharge, breach of contract, intentional infliction of emotional
distress, breach of alleged implied covenant of good faith and fair
dealing, invasion of privacy, defamation, and age or sex
discrimination, or discrimination based on any other ground, or any
alleged violation of: Title VII of the Civil Rights Act of 1964, as
amended; The Civil Rights Act of 1866, 1964 and 1991;
Sections 1981 through 1988 of Title 42 of the United States
Code, as amended; The Employee Retirement Income Security Act of
1974, as amended (except as to claims pertaining to vested benefits
under employee benefit plans maintained by the Company Releasees);
The Immigration Reform and Control Act, as amended; The Americans
with Disabilities Act of 1990, as amended; The Age Discrimination
in Employment Act of 1967, (including the Older Workers Benefit
Protection Act) as amended; The Workers Adjustment and Retraining
Notification Act, as amended; The Occupational Safety and Health
Act, as amended; the Fair Labor Standards Act; the Equal Pay Act;
the Family and Medical Leave Act; the National Labor Relations Act;
The New York State and New York City Human Rights Act, as amended;
The New York Executive Law, as amended; The New York City
Administrative Code, as amended; The New York Civil Rights Act, as
amended; The New York Equal Pay Law, as amended; The New York
Whistleblower Law, as amended; The New York Labor Law, as amended;
The New York Legal Activities Law, as amended; The New York
Workers’ Compensation Law, as amended; The New York
occupational safety and health laws, as amended; The New York
Minimum Wage Law, as amended; any other federal, state or local
civil or human rights law or any other local, state or federal law,
regulation or ordinance; any public policy, contract, tort, or
common law; or any allegation for costs, fees, or other expenses
including attorneys’ fees incurred in these matters, that the
Blackman Releasors had, now have or may have against the Company
Releasees, whether known or unknown, for, upon, or by reason of,
any matter, action or omission, whatsoever occurring up to the date
of this Agreement, other than (i) the consideration described
in Paragraphs 2 and 4 above, along with reasonable attorney’s
fees and costs if Blackman sues the Com
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