NYMAGIC, INC.
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement") dated as of February 20, 2002, by and
among (i) XXXX X. XXXXXXXX; XXXXXXXX INVESTMENTS LLC ("Xxxxxxxx
Investments"); XXXX X. XXXXXXXX XX. (the "Xxxxxxxx Trustee") as trustee of
the Xxxxxxxx Charitable Remainder Trust (the "Xxxxxxxx Co-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) FIRST UNION NATIONAL BANK
("First Union") 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 (the
"Xxxxxxxxx Co-Trusts"); and (iv) MARINER PARTNERS, INC. ("Mariner").
WHEREAS, the Participating Shareholders believe that it is advisable and in
the best interests of NYMAGIC, Inc. a New York corporation (the
"Corporation") and the shareholders thereof to enter into this 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.
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:
(A) The Participating Shareholders are:
(i) Xxxx X. Xxxxxxxx;
(ii) Xxxxxxxx Investments and the Xxxxxxxx Trustee as
co-trustee of the Xxxxxxxx Charitable Remainder Trust
dated April 1, 2001 (with Xxxxxxxx Investments and the
Xxxxxxxx Trustee constituting one Participating
Shareholder for all purposes under this Agreement); and
(iii) The Xxxxxxxxx Trustee as sole trustee of the Xxxxxx X.
Xxxxxxxxx 2000 Florida Intangible Tax Trust dated
December 12, 2000; as sole trustee of the Xxxxxx X.
Xxxxxxxx Xxxxxxxxx Family Foundation dated March 24,
1998; as co-trustee of the Xxxxxx X. Xxxxxxxxx Charitable
Lead Annuity Trust dated March 30, 2000; and as
co-trustee of the Xxxxxxx X. Xxxxxxxxx Charitable Lead
Unitrust dated March 30, 2000 (such trusts being
collectively, the "Xxxxxxxxx Trusts").
(B) 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. Xxxxxxxx
Investments hereby authorizes the Xxxxxxxx Trustee to vote at his
discretion the vote to which Xxxxxxxx Investments and the Xxxxxxxx
Trustee are collectively entitled.
(C) Xxxxxxxx Xxxxxxxx. As co-trustee of the Xxxxxxxx Co-Trust,
Xxxxxxxx Xxxxxxxx by her execution and delivery of this Agreement
hereby authorizes, consents and agrees to the terms of this
Agreement and authorizes the Xxxxxxxx Trustee to carry out the
terms hereof by voting the Voting Shares of the Xxxxxxxx Co-Trust
in the manner and for the purposes set forth herein.
(D) First Union. As co-trustee of the Xxxxxxxxx Co-Trusts, First Union
by its execution and delivery of this Agreement hereby authorizes,
consents and agrees to the terms of this Agreement and authorizes
the Xxxxxxxxx Trustee to carry out the terms hereof by voting the
Voting Shares of the Xxxxxxxxx Co-Trusts in the manner and for the
purposes set forth herein.
(E) Representations. Each Participating Shareholder represents and
warrants to Mariner as follows, but only as to himself or itself,
as applicable:
(i) Ownership of Shares. Each of Xxxx X. Xxxxxxxx and
Xxxxxxxx Investments is the record holder and beneficial
owner and each of the Xxxxxxxx Trustee and the Xxxxxxxxx
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.
(ii) 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.
(iii) 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.
(F) 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
subject to the terms of this Agreement (collectively, the "Voting Shares"):
(A) the 1,809,530 Shares of NYMAGIC, Inc. for which Xxxx X. Xxxxxxxx
has sole voting power;
(B) the 1,820,030 Shares of NYMAGIC, Inc. for which Xxxxxxxx Investments
has sole voting power; and
(C) the 100,000 Shares of NYMAGIC, Inc. held by the Xxxxxxxx
Charitable Remainder Trust for which the Xxxxxxxx Trustee has,
with the approval of Xxxxxxxx Xxxxxxxx, sole voting power as set
forth herein; and
(D) the 1,080,667 Shares of NYMAGIC held by the Florida Intangible Tax
Trust, the 39,288 shares held by the Xxxxxx X. Xxxxxxxx Xxxxxxxxx
Family Foundation, the 366,972 Shares held by the Xxxxxx X.
Xxxxxxxxx Charitable Lead Annuity Trust, and the 366,972 Shares of
NYMAGIC held by the Xxxxxxx X. Xxxxxxxxx Charitable Lead Unitrust
for which the Xxxxxxxxx Trustee has, with the consent and
agreement of First Union, voting power as set forth herein
(hereinafter the "Xxxxxxxxx Shares").
ARTICLE III. RIGHTS AND POWERS OF MARINER:
(A) 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.
(B) 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.
(C) 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) 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 each Participating Shareholder shall be
revoked on the Termination Date.
(E) No Revocation. The voting agreements contained herein are coupled
with an interest and may not be revoked, except by an amendment,
modification or termination effected in accordance with Articles
VII or VIII herein.
(F) Limitation of Liability: Mariner will exercise its best judgment
in exercising the rights and powers and in performing the duties
and obligations of a shareholder of the Corporation as set forth
in this Agreement. Mariner shall have no liability hereunder
except for its gross negligence and/or willful misconduct which
shall have caused direct, substantial and provable damage to the
Corporation.
ARTICLE IV. NOMINATION OF DIRECTORS:
(A) The Participating Shareholders and Mariner acknowledge the
benefits of a Board that reflects the knowledge, experience and
talents of both the Participating Shareholders and Mariner.
(B) Subject to (D) below, Mariner shall be entitled to nominate
four (4) candidates for election to the Board, and each
Participating Shareholder shall be entitled to nominate two (2)
candidates for election to the Board, for a total of ten (10)
directors. It is understood that Mariner intends to nominate each
of Xxxxxxx X. Xxxxxxxxxxxx, Xxxxxxx X. Xxxx, Xx., Xxxxxx Xxxxxxxx
and A. Xxxxxx Xxxxxx as candidates for the Board and that the
Participating Shareholders may nominate themselves as candidates
for the Board. The Participating Shareholders shall, consistent
with director fiduciary duties, cause their nominees to the Board
to vote for one of the Mariner-nominated members of the Board, as
designated by Mariner as Chairman of each meeting. If a
Participating Shareholder does not nominate the full number of
candidates for election to the Board that the Participating
Shareholder is authorized to nominate under this clause (B), then
in addition to its other rights under this clause (B), Mariner may
instead of that Participating Shareholder nominate a number of
candidates equal to the number not nominated by that Participating
Shareholder.
(C) Provided that the candidates of the Participating Shareholders
would not be legally disqualified from serving as directors of the
Corporation, Mariner agrees to vote the Voting Shares in favor of
the election of such candidates or any successor or replacement
candidates nominated by the Participating Shareholders.
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(D) On or before the anticipated May, 2002 shareholders' meeting of
the Corporation, Mariner agrees to use its reasonable efforts to
cause the Corporation to take such action as is necessary to
reduce the number of currently authorized directors of the
Corporation to ten (10).
(E) Subject to the provisions of the Corporation's bylaws, any
Participating Shareholder entitled under this Article IV to
designate any director or successor director may, acting
reasonably, replace any director nominated by it or him, as the
case may be, at any time and from time to time with or without
cause. Mariner agrees to use its reasonable efforts to cause the
Corporation to elect, and shall vote the Voting Shares in favor
of, such replacement director or successor. Mariner shall not
without the consent of a Participating Shareholder vote the Voting
Shares to remove any member of the Board nominated by that
Participating Shareholder.
ARTICLE V. COMPENSATION: Members of the Board nominated by Mariner shall
have the right to receive compensation paid by the Corporation at any time
or from time to time to members of the Board, including, without
limitation, any salary, fees, expenses, pension or other benefits or
emoluments and any amounts due under any directors' liability policy held
by Mariner or the Corporation on behalf of the members of the Board.
ARTICLE VI. PURCHASE OPTION AGREEMENT:
(A) Mariner shall have the right to purchase at any time and from time
to time up to 1,800,000 shares of the Corporation from the
Participating Shareholders in the amounts set forth below opposite
each such Participating Shareholder's name (that right, the
"Option"; those shares, the "Option Shares"), at the option price
set forth in (B) below (the "Option Price"):
(1) Xxxx X. Xxxxxxxx - 450,000 Shares;
(2) Xxxxxxxx Investments - 450,000 Shares;
(3) the Xxxxxxxxx Trustee - 900,000 Xxxxxxxxx Shares,
provided that the Xxxxxxxxx Trustee shall have the sole
power to determine the number of shares to be provided by
any one of the Xxxxxxxxx Trusts.
(B) The Option Price shall be as follows:
February 15-May 14, 2002: $19.00 per share
May 15-August 14, 2002: $19.25 per share
August 15-November 14, 2002: $19.50 per share
November 15 -February 14, 2003: $19.75 per share
February 15-May 14, 2003: $20.00 per share
May 15-August 14, 2003: $20.25 per share
August 15-November 14, 2003: $20.50 per share
November 15-February 14, 2004: $20.75 per share
February 15-May 14, 2004: $21.00 per share
May 15-August 14, 2004: $21.25 per share
August 15, -November 14, 2004: $21.50 per share
November 15 -February 14, 2005: $21.75 per share
February 15, 2005 - March 15, 2005: $22.00 per share
5
(C) Except as set forth in ARTICLE VII (iv) below, the right to
purchase the Option Shares under this Purchase Option Agreement
Clause shall cease 30 days after the Termination Date.
(D) The consideration for such Option Shares shall be paid in United
States Dollars, unless specifically agreed to the contrary in
writing by the Participating Shareholders.
(E) Notwithstanding ARTICLE XI(F) herein, (1) Mariner is permitted
to assign, in whole or in part, the Option (including any economic
benefit thereof) to any one or more of Xxxxxxx X. Xxxxxxxxxxxx,
Xxxxxxx X. Xxxx, Xx., Xxxxxx Xxxxxxxx and A. Xxxxxx Xxxxxx or any
other individual employed by or acting as consultant for Mariner
in connection with the Corporation; and (2) Mariner and any
assignee of the Option or any part thereof is permitted to assign,
in whole or in part, the Option (including any economic benefit
thereof) to any one or more other persons or entities, on
condition that the assignment is approved in writing by at least
two Participating Shareholders. It is a condition to a valid
assignment under this clause (E) that the assignee acknowledge
that it is bound by the terms of this Agreement.
ARTICLE VII. DURATION OF THIS AGREEMENT:
This Agreement shall terminate upon the earliest to occur of the following
dates (the "Termination Date"):
(i) February 15, 2005;
(ii) the merger or consolidation of the Corporation into another
corporation, the sale of all or substantially all its assets
or its dissolution and/or its liquidation;
(iii) immediately upon the resignation of Mariner; or
(iv) upon written notice of such termination to Mariner from
all of the Participating Shareholders, provided, that
except where such written notice of termination is due to
gross negligence or willful misconduct that causes or is
reasonably likely to cause direct, substantial and
provable damage to the Corporation, the Purchase Option
Agreement Clause set forth in Article VI above shall
continue in full force and effect until the close of
business on February 15, 2005.
ARTICLE VIII. AMENDMENT OF THIS AGREEMENT: This Agreement may be amended
or extended (i) by the unanimous written consent of the Participating
Shareholders and (ii) with the written agreement of Mariner.
ARTICLE IX. TRANSFER OF SHARES:
(A) The Participating Shareholders retain the right to sell, gift,
bequest, pledge or hypothecate (each a "Transfer") the Voting
Shares (the "Transferred Shares") provided, that (i) each
Participating Shareholder shall at all times retain that number of
Voting Shares necessary to enable Mariner to exercise the Options
in accordance with this Agreement, and (ii) each Participating
Shareholder agrees, subject to clause (B) below, that the
recipient of any Transferred Shares shall be subject to the terms
of this Agreement as if a signatory hereto and no such Transfer
shall take place unless the transferee agrees in writing to be
bound by this Agreement. Each Participating Shareholder effecting
a Transfer must promptly notify Mariner and the other
6
Participating Shareholders of that Transfer. All Transferred
Shares (other than any Voting Shares transferred in accordance
with clause (B) below) shall contain a legend in the following
form or otherwise satisfactory to Mariner:
"The shares represented by this certificate are subject
to certain voting agreements as set forth in a Voting
Agreement dated February 20, 2002, as amended from time
to time, by and among the owner of this certificate,
Mariner Partners, Inc. and certain shareholders of
NYMAGIC, Inc., a copy of which is available for
inspection at the offices of the Secretary of NYMAGIC,
Inc."
(B) During the duration of this Agreement, each Participating
Shareholder shall be allowed to sell up to 250,000 of the Voting
Shares and, upon such sale, such Voting Shares shall cease to be
subject to this Agreement.
(C) Other than as permitted by clauses (A) and (B) above and by
Article VI, no Participating Shareholder shall have the right to
Transfer or sell the Voting Shares.
(D) In the absence of an existing registration rights agreement,
Mariner agrees to use reasonable efforts to cause the Corporation
to take all necessary action to effect the registration under the
Securities Act of the Voting Shares in a manner reasonably
satisfactory to the Participating Shareholders and in the best
interests of the Corporation.
ARTICLE X. REGULATORY MATTERS: Notwithstanding any other provision of
this Agreement, the rights and powers of Mariner pursuant to Article III
and Article IV of this Agreement and the right of Mariner to acquire,
pursuant to Article VI of this Agreement, Option Shares representing in the
aggregate ten percent (10%) or more of the voting power conferred by all of
the voting stock of the Corporation at the time outstanding shall be
subject to the New York Superintendent of Insurance either (i) having given
his prior approval thereto pursuant to Section 1506 of the New York
Insurance Law or (ii) having determined pursuant to Section 1501(c) of the
New York Insurance Law that no such approval is required; provided,
however, that nothing in this Article X shall be construed to restrict the
right of Mariner to acquire, pursuant to Article VI of this Agreement,
Option Shares representing in the aggregate less than ten percent (10%) of
the voting power conferred by all of the voting stock of the Corporation at
the time outstanding.
ARTICLE XI. MISCELLANEOUS:
(A) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without
regard to principles of conflicts of law.
(B) Jurisdiction. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement
must be brought against any of the parties in the courts of the
State of New York, County of New York, or, if it has or can
acquire jurisdiction, in the United States District Court for the
Southern District of New York, and each of the parties consents to
the jurisdiction of those courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection
to venue laid therein.
7
(C) Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof
(D) Notices. All notices, consents, requests, instructions and
other communications provided for herein shall be in writing and
shall be deemed to have been sufficiently given or served, for all
purposes, if given to or served on (1) the Participating
Shareholders, at their respective addresses as set forth on the
signature page of this Agreement (and all communications for
Xxxxxxxx Investments are to be delivered to the Xxxxxxxx Trustee),
(2) Xxxxxxxx Xxxxxxxx, at the address as set forth on the
signature page of this Agreement, (3) Mariner, c/o Mariner
Partners, Inc., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
and (4) First Union National Bank, 000 Xxxxx Xxxxxxx Xxxx, Xxxx
Xxxxx, XX 00000.
(E) Confidentiality. Except as required by law or the standards of any
securities regulatory authority, no party may make any official
press release, announcement, or other formal publicity relating
to, or otherwise disclose to any person or entity (other than an
employee, attorney, or accountant) information regarding, the
transactions that are the subject of this Agreement without first
obtaining in each case the prior written consent of the other
parties (which consent may not be unreasonably withheld).
(F) Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and
permitted assigns, but, except as otherwise specifically provided
herein, neither this Agreement nor any of the rights, interests or
obligations of the parties hereto may be assigned without the
prior written consent of each other party hereto.
(G) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that if any party hereto breaches any of its
obligations under this Agreement, the other parties hereto will be
irreparably harmed and will have no adequate remedy at law for any
such breach. Therefore, it is agreed that, in addition to any
other remedies that may be available to any non-breaching party,
upon any such breach any non-breaching party may enforce the
breaching party's obligations under this Agreement by specific
performance, injunctive relief, or by any other means available to
that non-breaching party at law or in equity.
(H) Further Assurances. The parties hereto will each execute and
deliver, or cause to be executed and delivered, all further
documents and instruments and use its best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and
regulations, to consummate and make effective the transactions
contemplated by this Agreement.
8
(I) Expenses. All costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such costs and
expenses.
(J) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this
Agreement and all of which together shall constitute one and the
same instrument.
9
IN WITNESS WHEREOF, the parties hereto have hereunto set their respective
hands as of the day and year first above written.
OTHERS PARTICIPATING SHAREHOLDERS
MARINER PARTNERS, INC. /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxx XX Address:
By: ------------------------------ 00 Xxxxx Xxxx
Name: Xxxxxxx X. Xxxx XX Xxxxxx, XX 00000
Title: Treasurer
/s/ X.X. Xxxxxxxx
----------------------------------- XXXXXXXX INVESTMENTS LLC
Xxxxxxxx Xxxxxxxx, trustee
Address:
00 Xxx Xxxx Xxxx By: /s/ Xxxx X. Xxxxxxxx, Xx.
Xxxxxx, XX 00000 -------------------------------
Xxxx X. Xxxxxxxx, Xx.
Member
By: /s/ X.X. Xxxxxxxx
-------------------------------
Xxxxxxxx Xxxxxxxx
Member
FIRST UNION NATIONAL BANK
/s/ Xxxxxx X. Xxxxxxx
----------------------------- /s/ Xxxx X. Xxxxxxxx Xx, trustee
Name: Xxxxxx X. Xxxxxxx -------------------------------------
Title: Vice President & Trust Officer Xxxx X. Xxxxxxxx, Xx.
(as trustee of the Xxxxxxxx
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 Xxxxxx Xxxxx & Xxxxxxxx
000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
10
AMENDMENT NO. 1
DATED AS OF MARCH 1, 2002
TO
NYMAGIC, INC.
VOTING AGREEMENT
Reference is made to the Voting Agreement (the "Agreement") dated as of February
20, 2002, by and among (i) XXXX X. XXXXXXXX; XXXXXXXX INVESTMENTS LLC ("Xxxxxxxx
Investments"); XXXX X. XXXXXXXX XX. (the "Xxxxxxxx Trustee") as trustee of the
Xxxxxxxx Charitable Remainder Trust (the "Xxxxxxxx Co-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) FIRST UNION NATIONAL BANK ("First Union") 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 (the "Xxxxxxxxx Co-Trusts"); and (iv) MARINER PARTNERS,
INC. ("Mariner").
The opening paragraph of the Agreement is hereby amended to read as follows:
"VOTING AGREEMENT (this "Agreement") dated as of February 20, 2002, by
and among (i) XXXX X. XXXXXXXX; XXXXXXXX INVESTMENTS LLC ("Xxxxxxxx
Investments"); XXXX X. XXXXXXXX XX. (the "Xxxxxxxx Trustee") as trustee
of the Xxxxxxxx Charitable Remainder Trust (the "Xxxxxxxx Co-Trust");
and XXXXXX X. XXXXXX (the "Xxxxxxxxx Trustee") 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 (the "Participating
Shareholders"); (ii) XXXXXXXX XXXXXXXX as co-trustee with the Xxxxxxxx
Trustee of the Xxxxxxxx Charitable Remainder Trust; (iii) FIRST UNION
NATIONAL BANK ("First Union") 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 (the "Xxxxxxxxx Co-Trusts"); and (iv) MARINER
PARTNERS, INC. ("Mariner")."
Article II(D) of the Agreement is hereby amended to read as follows:
"(D) the 1,080,667 Shares of NYMAGIC held by the Florida Intangible
Tax Trust, the 39,288 shares held by the Xxxxxx X. Xxxxxxxx
Xxxxxxxxx Family Foundation, the 349,123 Shares held by the
Xxxxxx X. Xxxxxxxxx Charitable Lead Annuity Trust, and the
345,533 Shares of NYMAGIC held by the Xxxxxxx X. Xxxxxxxxx
Charitable Lead Unitrust for which the Xxxxxxxxx Trustee has,
with the consent and agreement of First Union, voting power as
set forth herein (hereinafter the "Xxxxxxxxx Shares")."
The Agreement, as amended hereby, remains in full force and effect.
IN WITNESS WHEREOF, the parties hereto have hereunto set their respective
hands as of the day and year first above written.
OTHERS PARTICIPATING SHAREHOLDERS
MARINER PARTNERS, INC. /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxx
Address:
By: /s/ X. Xxxx XX 00 Xxxxxxxx Xxxx
------------------------------ Darien, CT 06820-3205
Name: X. Xxxx XX
Title: Treasurer
/s/ X.X. Xxxxxxxx
----------------------------------- XXXXXXXX INVESTMENTS LLC
Xxxxxxxx Xxxxxxxx
Address:
00 Xxx Xxxx Xxxx By: /s/ Xxxx X. Xxxxxxxx, Xx.
Xxxxxx, XX 00000 -------------------------------
Xxxx X. Xxxxxxxx, Xx.
Member
By: /s/ X.X. Xxxxxxxx
-------------------------------
Xxxxxxxx Xxxxxxxx
Member
FIRST UNION NATIONAL BANK
/s/ Xxxxxx X. Xxxxxxx
----------------------------- /s/ Xxxx X. Xxxxxxxx Xx, trustee
Name: Xxxxxx X. Xxxxxxx -------------------------------------
Title: Vice President & Trust Officer Xxxx X. Xxxxxxxx, Xx.
(as trustee of the Xxxxxxxx
Charitable Remainder Trust)
Address:
00 Xxx Xxxx Xxxx
Xxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxx Trustee
-------------------------------------
Xxxxxx X. Xxxxxx
(as trustee of the Xxxxxxxxx Trusts)
Address:
Warwick Xxxxxx Xxxxx & Xxxxxxxx
000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
