Exhibit 10.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of January 7, 2005, by and among NYMAGIC, INC., a New York
corporation (the "Company") and the sellers listed on Schedule A hereto (each, a
"Seller" and collectively, the "Sellers").
R E C I T A L S
Whereas, each Seller desires to sell to the Company the number
of shares of Common Stock, par value $1.00 per share, of the Company ("Common
Stock") set forth opposite its respective name on Schedule A hereto
(collectively, the "Shares"); and
WHEREAS, the Company desires to purchase from each of the
Sellers all of such Seller's right, title and interest in and to the Shares
owned by such Seller on the terms and conditions set forth herein; and
WHEREAS, certain of the Sellers (collectively, the
"Participating Shareholders") are parties to that certain Voting Agreement,
dated as of February 20, 2002, as amended March 1, 2002, January 27, 2003, March
12, 2003 and February 24, 2004 (the "Voting Agreement") by and among Xxxx X.
Xxxxxxxx, Xxxxxxxx Investments LLC, Xxxx X. Xxxxxxxx, Xx., as trustee of the
Xxxxxxxx Charitable Remainder Trust, Xxxxxx X. Xxxxxx, as trustee of the Xxxxxx
X. Xxxxxxxxx 2000 Florida Intangible Tax Trust, as trustee of the Xxxxxx X.
Xxxxxxxx Xxxxxxxxx Family Foundation, as co-trustee of the Xxxxxx X. Xxxxxxxxx
Charitable Lead Annuity Trust, and as co-trustee of the Xxxxxxx X. Xxxxxxxxx
Charitable Lead Unitrust, Xxxxxxxx Xxxxxxxx as co-trustee of the Xxxxxxxx
Charitable Remainder Trust, First Union National Bank (now Wachovia Bank, N.A.),
as co-trustee of the Xxxxxx X. Xxxxxxxxx Charitable Lead Annuity Trust, and as
co-trustee of the Xxxxxxx X. Xxxxxxxxx Charitable Lead Unitrust, and Mariner
Partners, Inc. ("Mariner"); and
WHEREAS, pursuant to the Voting Agreement, the Participating
Shareholders have granted to Mariner the right to purchase up to an aggregate of
1,800,000 shares of Common Stock at an exercise price set forth in the Voting
Agreement (the "Option"), which Option expires on February 15, 2007, subject to
earlier termination upon the occurrence of certain events; and
WHEREAS, the Participating Shareholders are, among other
things, prohibited by the terms of the Voting Agreement from transferring their
shares of Common Stock unless the transferees thereof agree in writing to be
bound by the Voting Agreement and such Transferred Shares (as that term is
defined in the Voting Agreement) bear restrictive legends, including certain of
the Shares to be sold to the Company pursuant to this Agreement; and
WHEREAS, in order to permit the consummation of the
transactions contemplated by this Agreement, Mariner has agreed to irrevocably
release those Shares constituting Transferred Shares from the provisions of the
Voting Agreement (including without limitation the provisions contained in
ARTICLES III and IX thereof).
NOW, THEREFORE, in consideration of the promises and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Purchase of the Shares.
(a) Subject to the terms and conditions set forth in this
Agreement, the Company agrees to purchase from each Seller, and each Seller
agrees to sell to the Company, the number of Shares set forth opposite such
Seller's name on Schedule A at a price per share of $24.80. The aggregate
purchase price payable to each Seller is set forth opposite such Seller's name
on Schedule A. The purchase price shall be paid in full at the Closing (as
defined below) in immediately available U.S. funds by cash, bank check or wire
transfer to the Sellers.
(b) At the closing of the transactions contemplated hereby
(the "Closing"), each Seller will convey to the Company all of its right, title
and interest in and to the number of Shares set forth opposite its name on
Schedule A, free and clear of all Encumbrances (as defined pursuant to Section
2(a) hereof). Each Seller shall deliver to the Company at the Closing
certificates representing the Shares to be sold by such Seller duly endorsed for
transfer or accompanied by duly executed stock powers naming the Company as
transferee.
(c) The Closing shall take place at 5:00 p.m. (New York
time) on January 5, 2005 or such other date as the parties hereto shall agree
(the "Closing Date").
2. Representations and Warranties of the Sellers. As a
material inducement to the Company to enter into this Agreement and to
consummate the transactions contemplated hereby, each Seller, individually and
not jointly, hereby represents and warrants to the Company as follows:
(a) Such Seller is the lawful owner of the Shares to be
sold by it hereunder free and clear of any claim, lien, pledge, voting
agreement, adverse claim, option, charge, security interest, mortgage, deed of
trust, encumbrance, right of assignment, purchase right or other rights of any
nature whatsoever (each, an "Encumbrance") and has full power and authority to
convey such Shares free and clear of any Encumbrance and, upon delivery to the
Company of certificates representing such Shares, together with a stock power
duly executed by such Seller and by the Company, the Company will have acquired
good and valid title to the Shares, free and clear of any Encumbrance.
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(b) Such Seller, (i) if a natural person, has the legal
capacity to enter into this Agreement; if not a natural person, is duly formed,
validly existing and in good standing under the laws of the jurisdiction of its
formation, and (ii) has all requisite power and authority to transfer, assign,
convey and deliver its Shares to the Company in accordance with this Agreement.
(c) The execution, delivery and performance of this Agreement
by such Seller (i) have been duly and validly authorized by all necessary action
of the Seller and (ii) do not and will not violate any provision of law, rule or
regulation, any order of any court or other agency of government or any
provision of its organizational documents, including any applicable trust
documents. This Agreement has been duly executed and delivered by such Seller
and constitutes the legal, valid and binding obligation of such Seller,
enforceable against such Seller in accordance with the terms hereof except as
such enforcement may be limited by any bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar law affecting creditors'
rights and remedies generally and general principles of equity.
(d) The execution and performance of this Agreement by such
Seller, and the consummation by such Seller of the transactions contemplated
hereby, will not violate, result in a breach of, or constitute a default under
any agreement, instrument, judgment, order or decree to which such Seller is a
party or is otherwise bound or result in the creation or imposition of any lien,
charge, security interest or encumbrance of any nature whatsoever upon any of
the property or assets of such Seller pursuant to, any such agreement,
instrument, judgment, order or decree.
(e) No consent, waiver, approval or authorization of any third
party or governmental authority is required to be obtained by such Seller in
connection with the execution, delivery and performance of this Agreement and
the transactions contemplated hereby, which consent, waiver approval or
authorization has not been obtained.
(f) Such Seller has not entered into any agreement, commitment
or obligation with regard to any brokerage commission or finder's fee which
would be payable as a result of such Seller's execution, delivery or performance
of this Agreement.
(g) Such Seller (i) is an "accredited investor" within the
meaning of Rule 501 promulgated by the Securities and Exchange Commission under
the Securities Act of 1933, as amended, (ii) has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of such Seller's sale of its Shares under this Agreement, (iii) has been
furnished with and has had access to such information as such Seller has
considered necessary to make a determination as to the sale of its Shares under
this Agreement together with such additional information as is necessary to
verify the accuracy of the information supplied and (iv) has had all questions
which have been asked by such Seller, including, but not limited to, questions
regarding
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the Company's business operations and financial results, satisfactorily answered
by management employees of the Company.
3. Representations and Warranties of the Company. As a
material inducement to the Sellers to enter into this Agreement and to
consummate the transactions contemplated hereby, the Company hereby represents
and warrants to the Sellers as follows:
(a) The execution and delivery of, and the performance by
the Company of its obligations under this Agreement (i) are within its corporate
powers, (ii) have been duly authorized by all requisite corporate action, (iii)
do not and will not violate any provision of law, any order of any court or
other agency of government, or the corporate charter or by-laws of the Company,
and (iv) do not and will not violate any indenture, agreement or other
instrument to which it is a party, or by which it is bound, or be in conflict
with, result in a breach of, or constitute (with due notice or lapse of time or
both) a default under, or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of the property or
assets of the Company pursuant to, any such indenture, agreement or instrument.
(b) No consent, waiver, approval or authorization of any
third party or governmental authority is required to be obtained by the Company
in connection with the execution, delivery and performance of this Agreement and
the transactions contemplated hereby.
(c) This Agreement has been duly executed and delivered by
the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with the terms hereof
except as such enforcement may be limited by any bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar law affecting
creditors' rights and remedies generally and general principles of equity.
4. Deliveries.
(a) At the Closing, the Company shall deliver to each
Seller the aggregate purchase price payable to such Seller under this Agreement.
(b) At the Closing, each Seller shall deliver to the
Company certificates representing the number of Shares set forth opposite its
respective name on Schedule A hereto, accompanied by a duly executed stock power
in the form attached hereto as Exhibit A.
5. Conditions Precedent to Closing.
(a) Conditions Precedent to Company's Obligations. The
obligation of the Company to consummate the transactions contemplated hereby at
the
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Closing with respect to each Seller is conditioned upon satisfaction, or waiver
by the Company, at or prior to the Closing, of the following conditions:
(i) Each of the representations and warranties of such
Seller contained in this Agreement shall be true and correct as of the Closing
and such Seller shall have delivered to the Company a certificate, dated the
Closing Date and signed by such Seller certifying as to the fulfillment of this
condition.
(ii) Such Seller shall have delivered to the Company the
closing documents and instruments contemplated by Section 4 hereof.
(iii) The Company shall have completed the purchase of
all of the Shares owned by each Seller other than such Seller.
(b) Conditions to the Sellers' Obligations. The obligation
of each Seller to consummate the transactions contemplated hereby at the Closing
is conditioned upon satisfaction, or waiver by such Seller, at or prior to the
Closing, of the following conditions:
(i) Each of the representations and warranties of the
Company contained in this Agreement shall be true and correct as of the Closing
and the Company shall have delivered to such Seller a certificate, dated the
Closing Date and signed by the Company certifying as to the fulfillment of this
condition.
(ii) The Company shall have paid to such Seller the
purchase price payable hereunder.
6. Survival. All representations and warranties of the Sellers
and the Company shall survive the Closing indefinitely.
7. Indemnification. (a) Each Seller, will, severally and not
jointly, indemnify, defend and hold harmless the Company for, and will pay to
the Company any Damages arising from or in connection with any breach of any
representation or warranty made by such Seller in Section 2 of this Agreement or
set forth in the certificate of such Seller delivered at the Closing.
(b) The Company will indemnify, defend and hold harmless
each Seller for, and will pay to each Seller any Damages arising from or in
connection with any breach of any representation or warranty made by the Company
in Section 3 of this Agreement or set forth in the certificate of the Company
delivered at the Closing.
(c) As used herein, "Damages" shall mean any loss,
liability, claim, damage or expense (including reasonable attorneys' fees),
whether or not involving a third party claim.
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8. Termination. This Agreement may be terminated by written
notice prior to the Closing: (a) by mutual consent of the Company and the
Sellers or (b) by the Company, to the extent the Closing has not occurred prior
to January 7, 2005. In the event that this Agreement shall be terminated
pursuant to this Section 8, this Agreement shall become void and of no effect
with no further liability on the party of any party hereto; provided, however,
no such termination shall relieve any party hereto of any liability or damages
resulting from any breach of this Agreement prior to the date of termination.
9. Miscellaneous.
(a) Costs. Each of the parties hereto agrees to pay all of
their own respective closing costs and expenses (including, without limitation,
attorneys' fees), arising from this Agreement and the transactions contemplated
hereby.
(b) Binding Effect. This Agreement shall be binding upon
all of the parties and their assigns and successors in interest.
(c) Governing Law. This Agreement and the rights of the
parties hereunder shall be interpreted in accordance with the laws of the State
of New York.
(d) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(e) Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(f) Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided that no such severability shall be
effective if it materially changes the economic benefit of this Agreement to any
party hereto.
(g) Integration; Amendment. This Agreement memorializes and
constitutes the entire agreement and understanding among the parties hereto with
respect to the subject matter hereof, and supersedes and replaces all prior
negotiations, proposed agreements, and agreements with respect to such subject
matter, whether written or unwritten. This Agreement may be amended only by an
instrument in writing executed by all Parties hereto.
(h) Further Assurances. Each of the parties hereto agrees
on behalf of itself and its assigns or successors in interest that it will,
without further consideration, upon reasonable request, execute, acknowledge and
deliver such other
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documents and take such further action as reasonably may be necessary to carry
out the purposes of this Agreement and any requirements of the State of New York
or elsewhere in connection therewith.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
[The remainder of this page is left intentionally blank]
[Signature Pages Follow]
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THE COMPANY:
NYMAGIC, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman
THE SELLERS:
/s/ Xxxx X. Xxxxxxxx
--------------------
XXXX X. XXXXXXXX
/s/ Xxxxxxx Xxxxxxxx
--------------------
XXXXXXX XXXXXXXX
TRUST FOR THE BENEFIT OF
XXXXXXXXX XXXXXXXX
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Xxxxxxx Xxxxxxxx, Trustee
TRUST FOR THE BENEFIT OF
XXX XXXXXXXX
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Xxxxxxx Xxxxxxxx, Trustee
LIONSHEAD INVESTMENTS, LLC
(Formerly named Xxxxxxxx Investments, LLC)
By: /s/ Xxxx X. Xxxxxxxx, Xx.
-------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: Manager
/s/ Xxxx X. Xxxxxxxx, Xx.
-------------------------
XXXX X. XXXXXXXX, XX.
THE XXXXXXXX CHARITABLE REMAINDER TRUST
By: /s/ Xxxx X. Xxxxxxxx, Xx.
-------------------------
Xxxx X. Xxxxxxxx, Xx. Co-Trustee
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------
Xxxxxxxx Xxxxxxxx, Co-Trustee
TRUST FOR THE BENEFIT OF
XXXXX XXXXXXXX
By: /s/ Xxxx X. Xxxxxxxx, Xx.
-------------------------
Xxxx X. Xxxxxxxx, Xx. Trustee
/s/ Xxxxx Xxxxxxxx
------------------
XXXXX XXXXXXXX
/s/ Xxxxxxxxxxx Xxxxxxxx
------------------------
XXXXXXXXXXX XXXXXXXX
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XXXXXX X. XXXXXXXXX CHARITABLE LEAD ANNUITY
TRUST DATED 3/30/00
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx, Co-Trustee
By: Wachovia Bank, NA., Co-Trustee
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------
XXXXXXX X. XXXXXXXXX CHARITABLE LEAD UNITRUST
DATED 3/30/00
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx, Co-Trustee
By: Wachovia Bank, NA., Co-Trustee
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------
XXXXXX X. XXXXXXXX XXXXXXXXX FAMILY FOUNDATION
DATED 3/24/98
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx, Trustee
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Schedule A
Sellers
--------------------------------------------------------------------------------
Name and Address Aggregate Number of Redemption Price
Common Stock of Common Stock
--------------------------------------------------------------------------------
Xxxx X. Xxxxxxxx 54,530 shares $1,352,344.00
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxxxx Xxxxxxxx 50,000 shares $1,240,000.00
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Trust for the Benefit of 55,000 shares $1,364,000.00
Xxxxxxxxx Xxxxxxxx
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Trust for the Benefit of 55,000 shares $1,364,000.00
Xxx Xxxxxxxx
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Lionshead Investments, LLC 495,030 shares $12,276,744.00
00 Xxx Xxxx Xxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
The Xxxxxxxx Charitable 25,000 shares $620,000.00
Remainder Trust
00 Xxx Xxxx Xxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Trust for the Benefit of 25,158 shares $623,918.40
Xxxxx Xxxxxxxx
00 Xxx Xxxx Xxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxx Xxxxxxxx 33,832 shares $839,033.60
00 Xxx Xxxx Xxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
Xxxxxxxxxxx Xxxxxxxx 33,832 shares $839,033.60
00 Xxx Xxxx Xxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxxx 133,135 shares $3,301,748.00
Charitable Lead Annuity
Trust dated 3/30/00
C/0 Wachovia Bank, N.A.
000 Xxxxx Xxxxxx Xxxx
XX0000
Xxxx Xxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxxx 125,374 shares $3,109,275.20
Charitable Lead Unitrust
dated 3/30/00
C/O Wachovia Bank, N.A.
000 Xxxxx Xxxxxx Xxxx
XX0000
Xxxx Xxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx Xxxxxxxxx 6,844 shares $169,731.20
Family Foundation Dated
3/24/98
X/X Xxxxxx X. Xxxxxx, Xxx.
000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
--------------------------------------------------------------------------------
Total 1,092,735 shares $27,099,828.00
--------------------------------------------------------------------------------
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EXHIBIT A
---------
Form of Stock Power
-------------------
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign
and transfer to [____________________] [__( )__] shares of Common Stock, par
value $1.00 per share, of NYMAGIC, Inc., a New York corporation, standing in the
name of the undersigned on the books of said corporation represented by
Certificate No. ___ and does hereby irrevocably constitute and appoint
___________________________ as attorney to transfer the said stock on the books
of said corporation with full power of substitution in the premises.
Dated: _________, 200_
---------------------------------
