Exhibit 10.22
AMENDMENT NUMBER 4
DATED AS OF FEBRUARY 24, 2004
TO
NYMAGIC, INC. VOTING AGREEMENT
Reference is made to the Voting Agreement (the "Agreement") dated as of
February 20, 2002, as amended March 1, 2002 and further amended by Amendment No.
2 dated as of January 27, 2003 and Amendment No. 3 dated as of March 12, 2003 by
and among (i) XXXX X. XXXXXXXX; XXXXXXXX INVESTMENTS LLC; XXXX X. XXXXXXXX, XX.
(the "Xxxxxxxx Trustee") as trustee of the Xxxxxxxx Charitable Remainder Trust;
and XXXXXX X. XXXXXX (the "Xxxxxxxxx Trustee") as trustee of the Xxxxxx X.
Xxxxxxxxx 2000 Florida Intangible Tax Trust, as co-trustee of the Xxxxxx X.
Xxxxxxxxx Charitable Lead Annuity Trust, and as co-trustee of the Xxxxxxx X.
Xxxxxxxxx Charitable Lead Unitrust (the "Participating Shareholders"); (ii)
XXXXXXXX XXXXXXXX as co-trustee with the Xxxxxxxx Trustee of the Xxxxxxxx
Charitable Remainder Trust, (iii) WACHOVIA BANK, N.A., as successor in interest
to First Union National Bank, as co-trustee with the Xxxxxxxxx Trustee of the
Xxxxxx X. Xxxxxxxxx Charitable Lead Annuity Trust, and as co-trustee with the
Xxxxxxxxx Trustee of the Xxxxxxx X. Xxxxxxxxx Charitable Lead Unitrust; and (iv)
MARINER PARTNERS, INC.
Capitalized terms not otherwise defined herein are used with the
meanings ascribed to such terms in the Agreement.
Article IV (B) is deleted in its entirety and replaced by the following:
"(B) Mariner shall be entitled to nominate three (3) candidates for election to
the Board; Xxxxxx X. Xxxxxx shall be entitled to nominate one (1) candidate for
election to the Board, including himself; Xxxx X. Xxxxxxxx shall be entitled to
nominate one (1) candidate for election to the Board and Xxxx X. Xxxxxxxx Xx.
shall be entitled to nominate one (1) candidate for election to the Board,
provided that the candidates nominated to the Board by Xxxx X. Xxxxxxxx and Xxxx
X. Xxxxxxxx, Xx. shall qualify as Independent Directors in accordance with the
Rules of the New York Stock Exchange and all other applicable laws and
regulations that may be enacted from time to time; and, the Chief Executive
Officer of NYMAGIC, INC. shall be entitled to nominate three (3) directors for
election to the Board, all of whom shall be Independent Directors, as described
in this Article IV(B), for a total of nine directors.
The Participating Shareholders shall, consistent with director fiduciary
duties, cause their nominees to vote for one of the Mariner nominated members of
the Board, as designated by Mariner as Chairman of each meeting. If any of
Xxxxxx X. Xxxxxx, Xxxx X. Xxxxxxxx, and Xxxx X. Xxxxxxxx Xx. does not nominate a
candidate for the Board as authorized under this Article IV (B), Mariner may
instead nominate a number of candidates equal to the number not nominated by
these individuals."
Article IV (D) is deleted in its entirety and replaced by the following:
"(D) On or before the meeting of the Board of Directors of the Corporation on
February 26, 2004, Mariner and the Participating Shareholders agree to use their
reasonable efforts to cause the Corporation to take such action as is necessary
to increase the number of authorized directors to thirteen (13). Thereafter, and
on or before the anticipated May 2004 shareholders' meeting of the Corporation,
Mariner and the Participating Shareholders agree to use their reasonable efforts
to cause the Corporation to take such action as is necessary to reduce the
number of then currently authorized directors to nine (9)."
Article IV (E) is amended by deletion of the first sentence and replacing it
with the following:
"Subject to the provisions of the Corporation's By-laws, any
Participating Shareholder entitled under this Article IV to designate any
director or successor director may, acting reasonably, replace any director
nominated by him at any time and from time to time with or without cause,
provided that any replacement director complies with the provisions of Article
IV (B)."
This agreement may be signed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument.
[Balance of Page Intentionally Left Blank - Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have hereunto set their
respective hands as of the 24th day of February 2004.
OTHERS PARTICIPATING SHAREHOLDERS
/s/ Xxxx X. Xxxxxxxx
MARINER PARTNERS, INC. -----------------------------
Xxxx X. Xxxxxxxx
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx Address:
----------------------------------------- 00 Xxxxxxxx Xxxx
Name: Xxxxxxx X. Xxxxxxxxxxxx Xxxxxx, XX 00000
Title: Chairman
XXXXXXXX INVESTMENTS LLC
/s/ Xxxxxxxx Xxxxxxxx
-------------------------------------------- By: /s/ Xxxx X. Xxxxxxxx, Xx.
Xxxxxxxx Xxxxxxxx --------------------------
Address: Xxxx X. Xxxxxxxx, Xx.
00 Xxx Xxxx Xxxx Xxxxxx
Xxxxxx, XX 00000
By: /s/ Xxxxxxxx Xxxxxxxx
WACHOVIA BANK, N.A. --------------------------
Successor in Interest To: Xxxxxxxx Xxxxxxxx
FIRST UNION NATIONAL BANK Member
/s/ Xxxxx Xxx Kaly /s/ Xxxx X. Xxxxxxxx, Xx.
-------------------------------------------- -----------------------------
Name: Xxxxx Xxx Kaly Xxxx X. Xxxxxxxx, Xx.
--------------------------------- (as trustee of the Xxxxxxxx
Title: Vice President Charitable Remainder Trust)
--------------------------------- Address:
00 Xxx Xxxx Xxxx
Xxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx
(as trustee of the Xxxxxxxxx
Trusts)
Address:
Warwick & Simses
000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
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