NYMAGIC, INC.
AMENDED AND RESTATED VOTING AGREEMENT
AMENDED AND
RESTATED VOTING AGREEMENT (this “Agreement”) dated as
of October 12,
2005 by and among (i) MARK W. BLACKMAN, (ii) LIONSHEAD
INVESTMENTS, LLC (“Lionshead Investments”), ROBERT G.
SIMSES (formerly the “Tollefson Trustee” and
hereinafter, the “Louise Blackman Trustee”) as trustee
of the Louise B. Tollefson 2000 Florida Intangible Tax Trust and as
trustee of the Louise B. Blackman Tollefson Family Foundation, (the
“Participating Shareholders”); and (iv) MARINER
PARTNERS, INC. (“Mariner”).
WHEREAS, the Participating Shareholders (including
Lionshead Investments, which was then known as Blackman
Investments, LLC) and Mariner, together with John N. Blackman, Jr.
(the “Blackman Trustee”) as trustee of the Blackman
Charitable Remainder Trust (the “Blackman Co-Trust”),
Kathleen Blackman as co-trustee with the Blackman Trustee of the
Blackman Co-Trust, and Robert G. Simses and First Union National
Bank (now Wachovia Bank, N.A.) as co-trustees of the Louise B.
Tollefson Charitable Lead Annuity Trust (the “CLAT”)
and the Bennett L. Tollefson Charitable Lead Unitrust (the
“CLUT”) entered into a certain voting agreement dated
February 20, 2002, which voting agreement was amended on
March 1, 2002 and further amended by Amendment No. 2 on
January 27, 2003, Amendment No. 3 on March 12, 2003
and Amendment No. 4 on February 24, 2004 (the
“Voting Agreement”);
WHEREAS, the CLAT and the CLUT, with the approval of, and
waivers granted by, Mariner pursuant to the Voting Agreement
transferred all of their respective shares of NYMAGIC, INC. (the
“Corporation”) so that they are no longer subject to
the Voting Agreement;
WHEREAS, the parties do not deem it necessary to include
the Blackman Co-Trust as a party to this Agreement;
WHEREAS, notwithstanding that the CLAT and the CLUT are
no longer subject to the Voting Agreement and that the parties no
longer deem it necessary to include the Blackman Co-Trust as a
party to this Agreement, the Participating Shareholders continue to
believe that it is advisable and in the best interests of the
Corporation and the shareholders thereof to have a voting agreement
in order to (i) secure continuity and stability of policy and
management of the Corporation with the advice and assistance of
Mariner, and (ii) induce Mariner to enter into an advisory
relationship with the Corporation, by acting together with respect
to the voting on or consenting to certain matters that may be acted
upon by the holders of common stock of the Corporation;
and,
WHEREAS the parties hereto desire to amend and restate
the Voting Agreement as provided for herein.
NOW,
THEREFORE, in
consideration of the foregoing and of the mutual covenants and
agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
PARTICIPATING SHAREHOLDERS; REPRESENTATIONS; ETC:
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(A)
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The
Participating Shareholders are:
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(i)
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Mark W. Blackman;
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(ii)
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Lionshead Investments;
and
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(iii)
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The
Louise Blackman Trustee as sole trustee of the Louise B. Tollefson
2000 Florida Intangible Tax Trust dated December 12, 2000 and
the Louise B. Blackman Tollefson Family Foundation dated
March 24, 1998 (such trusts being collectively, the
“Louise Blackman Trusts”).
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(B)
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Voting . With regard to any provision of
this Agreement allowing for, or requiring, the vote of the
Participating Shareholders, each Participating Shareholder shall
have one vote.
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(C)
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Representations
. Each Participating
Shareholder represents and warrants to Mariner as follows, but only
as to himself or itself, as applicable:
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(i)
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Ownership of Shares
. Each of Mark W.
Blackman and Lionshead Investments is the record holder and
beneficial owner and the Louise Blackman Trustee is the record and
legal holder of that number of Voting Shares (as hereinafter
defined) listed opposite each such Participating
Shareholder’s name in Article II hereof which at the
date hereof, and at all times up until the Termination Date (as
hereinafter defined) will be free and clear of any liens, claims,
options, charges or other encumbrances, except as permitted
herein.
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(ii)
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Authorization
. The execution,
delivery and performance by each Participating Shareholder of this
Agreement and the consummation by each Participating Shareholder of
the transactions contemplated hereby are within the powers of each
Participating Shareholder. This Agreement constitutes a legal,
valid and binding Agreement of each Participating
Shareholder.
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(iii)
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No Other Voting Agreement
. Other than as set
forth herein, none of the Voting Shares is subject to any voting
trust or other agreement, document or arrangement with respect to
the voting of such Voting Shares and no Participating Shareholder
shall enter into any such trust, agreement or arrangement during
the term of this Agreement.
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(D)
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Dividends . Dividends and the proceeds from
any sale or other distribution of any Voting Shares shall be paid
or distributed to the applicable Participating Shareholder as if
this Agreement did not exist.
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ARTICLE II.
SHARES SUBJECT TO THIS AGREEMENT:
The
following are shares of common stock of the Corporation are subject
to the terms of this Agreement (collectively, the “Voting
Shares”):
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(A)
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225,000 Shares of NYMAGIC, INC. for
which Mark W. Blackman has sole voting power;
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(B)
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225,000 Shares of NYMAGIC, INC. for
which Lionshead Investments has sole voting power; and
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2
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(C)
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861,409 Shares of NYMAGIC, INC. held
by the Florida Intangible Tax Trust and 38,591 shares held by the
Louise B. Blackman Tollefson Family Foundation (the “Louise
Blackman Shares”).
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ARTICLE III.
RIGHTS AND POWERS OF MARINER:
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(A)
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Except as provided in clause
(B) below and Article IV, the Participating Shareholders
hereby irrevocably authorize Mariner, with (and only with) the
written approval of two of the three Participating Shareholders, to
exercise all of the rights of a shareholder of the Corporation and
to vote the Voting Shares at all meetings of shareholders,
including all adjournments thereof and on every action or approval
by written consent of the shareholders of the Corporation in the
manner contemplated herein. Subject to clause (B) below, in
the event that two of the three Participating Shareholders fail to
approve any vote by Mariner on any matter, Mariner shall not vote
on such matter, and Mariner’s non-voting will not entitle any
Participating Shareholder to instead vote his or its Voting Shares
on that matter.
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(B)
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Notwithstanding the provisions of
clause (A) above or any other provision of this Agreement,
Mariner shall have no right to vote on or consent to (a) the
merger or consolidation of the Corporation into or with another
corporation, (b) the sale of all or substantially all of its
assets, (c) its dissolution and/or liquidation, or
(d) any recapitalization or stock offering of the Corporation,
unless two of the three Participating Shareholders shall have
consented thereto in writing. In the event that two of the three
Participating Shareholders fail to approve any vote by Mariner on
any matter referred to in this clause (B), Mariner shall not vote
on such matter and instead each Participating Shareholder may vote
his or its Voting Shares on that matter.
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(C)
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Notices . Mariner shall have the right to
receive notices of all meetings of the board of directors of the
Corporation (the “Board”) and of the shareholders of
the Corporation.
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(D)
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Irrevocable Proxy
. By entering into this
Agreement and subject to the terms hereof each Participating
Shareholder hereby grants, subject to the provisions of
(A) and (B) above, an irrevocable proxy and power of
attorney appointing Mariner as such Participating
Shareholder’s attorney-in-fact and proxy, with full power of
substitution, for and in such Participating Shareholder’s
name, to vote, express, consent or dissent, or otherwise to utilize
such voting power in the manner contemplated by the parties to this
Agreement and to carry out the intent of such parties as Mariner
deems proper with respect to the Voting Shares and the operation of
the Corporation. The proxy granted by each Participating
Shareholder pursuant to this Article III is irrevocable and is
granted in consideration of Mariner entering into this Agreement
and becoming an advisor to the Corporation. The proxy granted by
eac
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