EMPLOYMENT AGREEMENT
Exhibit 10.2
This Employment Agreement is entered into as of January 1, 2010 (the “Effective Date”)
by and between NYMAGIC, INC., a New York corporation (together with its subsidiaries, and its and
their successors and assigns, the “Company”), and Xxxxxxx XxXxxxxx (the
“Executive”).
WITNESSETH:
WHEREAS, the Company desires to employ the Executive upon the terms and conditions set forth
herein; and
WHEREAS, the Executive desires to accept such employment with the Company and to enter into
this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for
other good and valuable consideration, the receipt of which is mutually acknowledged, the Company
and the Executive (each individually a “Party” and together the “Parties”) agree as
follows:
1. EMPLOYMENT.
The Company agrees to employ the Executive and the Executive agrees to provide services to the
Company from the Effective Date until the earlier of (i) the Termination Date and (ii) December 31,
2012 (the “Employment Term)..
2. TITLE AND DUTIES.
The Executive shall serve as Executive Vice President of Mutual Marine Office, Inc. and shall
perform such duties and responsibilities as are assigned to him from time to time by the Company’s
President and Chief Executive Officer, to whom he shall report. Such duties and responsibilities
of the Executive shall be those which are customary and consistent with the Executive’s position as
Executive Vice President of the Company. The Executive shall devote substantially all of his
business time and attention (except for periods of vacation or absence due to illness), and his
best efforts, abilities, experience, and talent to the position of Executive Vice President.
3. COMPENSATION AND BENEFITS.
(a) Base Compensation. During the Employment Term, the Executive shall be paid an
annualized salary, payable in accordance with the regular payroll practices of the Company equal to
$325,000 per annum (the “Base Salary”) which amount shall not be reduced. The Human
Resources Committee of the Board of Directors of the Company (the “HR Committee”) shall review the
Base Salary from time to time and in its sole and absolute discretion may, but is not obligated to,
increase the Base Salary.
(b) Incentive Bonus. During the Employment Term, the Executive shall be entitled to
participate in all incentive compensation plans and programs maintained by the Company and
applicable generally to senior executives of the Company in accordance with the terms thereof.
Without limiting the foregoing, for each calendar year during the Employment Term, the Executive
shall participate in the Company’s annual incentive plan, with a target Incentive Bonus, as defined
below, of 30% of Base Salary (“Target Incentive Bonus”), and shall be eligible for an annual
incentive bonus award based on the achievement of certain performance goals and objectives during
the Company’s calendar year as determined in the first quarter of the calendar year by the
President and Chief Executive Officer of the Company (the “President and CEO”) after consultation
with the HR Committee (the “Incentive Bonus”). The achievement of any goal or objective
shall be determined in the discretion of the President and CEO, after consulting with the HR
Committee, and the annual Incentive Bonus shall be paid to the Executive in the calendar year
following the year in which such annual Incentive Bonus was earned but no later than March 15 of
such following year.
(c) Employment Benefit Plans. During the Employment Term, the Executive shall be
entitled to participate in such employee benefit plans and programs of the Company as are made
available to the Company’s senior level executives or to its employees generally, as such plans or
programs may be in effect from time to time and subject to the right of the Company, in its sole
discretion, to modify and/or terminate any such plans at any time, including, without limitation,
health, medical, dental long-term disability, profit sharing and travel accident and life insurance
plans.
4. REIMBURSEMENT OF EXPENSES.
In addition to the compensation provided for under Section 4 hereof, the Company shall
promptly reimburse the Executive for all reasonable business expenses incurred by the Executive
during the Employment Term in the ordinary course of business and otherwise incurred in connection
with the Executive’s fulfillment of the Executive’s professional responsibilities to the Company in
accordance with the then existing policies and procedures of the Company. For purposes of
satisfying Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the
parties agree that the amounts reimbursed hereunder for one calendar year shall not affect the
amounts reimbursed for other calendar years, and reimbursement payments, if any, shall in all
events be made no later than the end of the calendar year following the calendar year in which the
applicable business expense is incurred.
5. TERMINATION BENEFITS.
(a) Notice of Termination/Termination Date. Any termination of employment by the
Company or by the Executive under this Section 5 shall be communicated by a written notice
to the other party hereto indicating the specific termination provision in this Agreement relied
upon, setting forth in reasonable detail the facts and circumstances claimed to provide a basis for
the termination of employment under the provision so indicated, and specifying a Termination Date
as provided for in
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this Agreement (a “Notice of Termination”). The “Termination Date” shall be
(i) pursuant to Section 5(c), the date of death of the Executive; (ii) pursuant to Section 5(c) if
the Executive is terminated as a result of disability, the date specified in the Notice of
Termination; (iii) if the Executive terminates his employment pursuant to Section 5(d), the end of
the applicable ten (10) day notice period or, if earlier, the date the Executive ceases to perform
services for the Company if the Executive does not give Notice of Termination or if the Company
waives such notice; (iv) pursuant to Section 5(e), the date on which the Notice of Termination is
given to the Executive; and (v) pursuant to Section 5(f),Section 5(g) or Section 5(h), the date
specified in the applicable Notice of Termination.
(b) Accrued Benefits. Upon the Executive’s termination of employment for any reason,
the Executive shall be entitled to receive (i) Base Salary earned for services rendered by the
Executive through the Termination Date which shall be paid within five (5) days of the Termination
Date; (ii) any earned but unpaid bonus due the Executive for the calendar year prior to the
calendar year of the Termination Date paid in accordance with the terms and conditions of such
bonus plan; (iii) any unpaid expense reimbursement owed to the Executives under Section 4
which shall be paid within thirty (30) days of the Termination Date; and (iv) any amount earned,
accrued and arising from the Executive’s participation in, or benefits accrued under any Company
employee benefit plan or arrangement, which amounts shall be payable in accordance with the terms
and conditions of such employee benefit plans and arrangements (the “Accrued Benefits”).
(c) Termination of Employment Due to Death or Permanent Disability. The Employment
Term shall be terminated immediately upon the death or disability (as such term is defined under
the Company’s long-term disability plan) of the Executive. In the event of the Executive’s
employment with the Company is terminated due to his death or disability, the Executive, his estate
or his beneficiaries, as the case may be, shall only be entitled to the Accrued Benefits.
(d) Voluntary Termination. The Executive may terminate his employment with the
Company on his own initiative (other than on account of his death or disability) upon delivery of
ten (10) business days advance written notice to the Company, which notice may be waived by the
Company. If the Executive terminates his employment pursuant to the preceding sentence, or
terminates his employment on his own initiative but fails to provide such written notice, the
Executive shall only be entitled to the Accrued Benefits. Notwithstanding any implication to the
contrary, the Executive shall not have the right to terminate his employment with the Company
during the Employment Term and any voluntary termination of employment during the Employment Term
in violation of this Agreement shall be considered a material breach.
(e) Termination for Cause. If the Executive’s employment shall terminate by the
Company for Cause, the Executive shall only be entitled to the Accrued Benefits.
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(f) Termination without Cause . If the Executive’s employment is terminated by the
Company at any time without cause during the Employment Term, the Executive shall only be entitled
to the following:
(i) The Accrued Benefits; and,
(ii) A lump sum cash payment equal to the sum of:
(1) the product of the number of months remaining in the Employment Term subsequent to the
Termination Date times one twelfth (1/12) of the Executive’s Base Salary at the rate in effect
immediately prior to the Termination Date; and,
(2) the product of (x) a fraction, the numerator of which is the number of months elapsed in
the calendar year of the Executive’s Termination Date, and the denominator of which is twelve (12)
months, times (y) the Executive’s Target Incentive Bonus at the Executive’s Base Salary at the rate
in effect immediately prior to the Termination date (the “Pro Rata Incentive Bonus”).
(g) Termination without Cause Prior to, on the date of, or Following a Change in
Control. If the Executive’s employment is terminated by the Company at any time without cause
within six (6) months prior to, on the date of, or following a Change of Control as defined below,
the Executive shall only be entitled to the following:
(i) The Accrued Benefits;
(ii) A lump sum cash payment equal to the amount of two (2) years of Base Salary at the rate
in effect immediately prior to the Termination Date (or, in the case of such a termination of
employment following a Change in Control, at the highest rate in effect following such Change in
Control); provided, however, that if the amount calculated under Section 5(f)(ii) would be greater
than the amount calculated under this Section 5(g)(ii), the lump sum payment to be made to the
Executive shall be the amount calculated under Section 5(f)(ii) with respect to such termination;
and,
(iii) The Pro Rata Incentive Bonus.
(h) Termination by the Executive for Good Reason Following a Change of Control. If
the Executive’s employment is terminated by the Executive for Good Reason (as defined below) within
two (2) years following a Change of Control, the Executive shall only be entitled to the following:
(i) The Accrued Benefits;
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(ii) A lump sum cash payment equal to the amount of two (2) years of Base Salary at the rate
in effect immediately prior to the Date of Termination (or if higher, immediately prior to a
reduction in Base Salary that provides the Executive with Good Reason to terminate employment);
and,
(iii) The Pro Rata Incentive Bonus (calculated, in the case of such a termination of
employment following a Change in Control, at the Executive’s Base Salary in effect immediately
prior to the Date of Termination (or if higher, immediately prior to a reduction in Base Salary
that provides the Executive with Good Reason to terminate employment).
(i) Cause” shall exist if: (i) the Executive willfully and materially breaches of
Section 6 and Section 7 of this Agreement; (ii) the Executive is convicted of a
felony or pleads guilty or nolo contendere to an offense that is a felony in the jurisdiction where
committed; (iii) the Executive engages in conduct that constitutes willful gross neglect or willful
gross misconduct in carrying out his duties under this Agreement, resulting, in either case, in
material harm to the financial condition or reputation of the Company; (iv) the Executive fails to
cooperate, if requested by the Board, with any investigation or inquiry into his or the Company’s
business practices, whether internal or external, including, but not limited to the Executive’s
refusal to be deposed or to provide testimony at any trial or inquiry; (v) the Executive
substantially and continuously refuses to perform his duties; and (vi) the Executive violates a
material Company policy. For purposes of this Agreement, an act or failure to act on the
Executive’s part shall be considered “willful” if it was done or omitted to be done by him not in
good faith, and shall not include any act or failure to act resulting from any incapacity of the
Executive. A termination for Cause shall not take effect unless the Executive shall be given
written notice by the Company of its intention to terminate him for Cause, such notice (A) to state
in detail the particular act or acts or failure or failures to act that constitute the grounds on
which the proposed termination for Cause is based and (B) to be given within thirty (30) days of
the Company’s learning of such act or acts or failure or failures to act. The Executive shall have
twenty (20) days after the date that such written notice has been given to him in which to cure
such conduct, to the extent such cure is possible. If he fails to cure such conduct, the Executive
shall then be entitled to a hearing before the Board at which the Executive is entitled to appear.
Such hearing shall be held within twenty-five (25) days of such notice to the Executive, provided
he requests such hearing within ten (10) days of the written notice from the Company of the
intention to terminate him for Cause. If, within five (5) days following such hearing, the
Executive is furnished written notice by the Board confirming that, in its judgment, grounds for
Cause on the basis of the original notice exist, he shall thereupon be terminated for Cause.
(j) “Change of Control” shall mean:
(i) the sale, transfer or other disposition for financial consideration (hereinafter
“sale”) or series of integrated sales, other than by the
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Company, to an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of 45% or more of
the then outstanding shares of common stock of the Company (the “Outstanding Company
Stock”) provided, however, that (x) any acquisition by the Company or any of its affiliates, or
(y) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the
Company or any of its subsidiaries, or (z) any transfer to or among any Permitted Transferee shall
not constitute a Change of Control, and shall not be included in such percentage for determining
whether a Change of Control has occurred hereunder;
(ii) approval by the stockholders of the Company of a plan of complete liquidation or
dissolution of the Company;
(iii) consummation of an agreement for the sale or other disposition of all or substantially
all of the assets of the Company, other than to an entity in which 50% or more of either (1) the
outstanding shares of common stock of such entity or (2) the combined voting power of the then
outstanding voting securities of such entity entitled to vote generally in the election of
directors are owned by individuals who were stockholders of the Company immediately prior to the
sale or other disposition; or
(iv) consummation of a merger of the Company with any other corporation, other than (1) a
merger or consolidation which would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to represent (either by remaining
outstanding or being converted into voting securities of the surviving entity or any parent
thereof), in combination with the ownership of any trustee or fiduciary holding securities under an
employee benefit plan of the Company or any subsidiary of the Company, at least 50% of the combined
voting power of the securities of the Company or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or (2) a merger or consolidation
effected to implement a recapitalization of the Company (or similar transaction) with respect to
which all or substantially all of the individuals and entities who were the respective beneficial
owners of the Outstanding Company Common Stock or its combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors (the “Outstanding
Voting Securities”) immediately prior to such reorganization, merger or consolidation
beneficially own, directly or indirectly, following such reorganization, merger or consolidation,
50% or more of the then outstanding shares of common stock and/or the Outstanding Voting
Securities, as the case may be, of the corporation resulting form such reorganization, merger or
consolidation; provided, however, that notwithstanding anything to the contrary in this Section
5(h)(i) through (iv) above, a Change of Control shall not be deemed to have occurred by virtue of
the consummation of any transaction or series of integrated transactions immediately following
which the record holders of the Outstanding Company Common Stock and/or Outstanding Company Voting
Securities immediately prior to such transaction or transactions beneficially own, directly or
indirectly, at least 50% of either (x) the outstanding shares of common stock of the entity which
owns all or substantially all of the assets of the Company immediately following such transaction
or series of transactions or (y) the combined voting power of the then outstanding voting
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securities of such entity entitled to vote generally in the election of directors, in either
case, in substantially the same proportion as their ownership of the Company immediately prior to
the transaction or series of transactions.
“Permitted Transferee” shall mean (i) in the case of a natural person, such person’s
spouse, children, brother and/or sister, mother, father, or other lineal descendants, or any trust
formed for the benefit of such persons (hereinafter “family members”), (ii) in the case of
a trust, including any voting trust, the trustees and beneficiaries of such trust, whether or not
for the benefit of family members, or trusts, as part of the regular estate planning, and (iii) any
estate of any of the family members.
(k) “Good Reason” shall mean, without the Executive’s prior written consent: (i) a
material reduction in the Executive’s Base Salary; (ii) the assignment to the Executive of duties
materially inconsistent with the position and status of the Executive as set forth in this
Agreement and/or any material diminution in the nature, status or prestige of the Executive’s
title, authority, responsibilities or reporting level from that set forth in this Agreement; (iii)
a failure by the Company to obtain from any successor, before any succession (including but not
limited to stock or asset sale transaction) takes place, an agreement by the successor to fully
assume and perform this Agreement and the obligations hereunder; or (iv) a material breach of this
Agreement by the Company; provided that the events described in clauses (i) through (iv) above
shall constitute Good Reason only if the Executive provides notice of the existence of Good Reason
within thirty (30) days following the date that the circumstances that give rise to such event
occur and the Company fails to cure such event within thirty (30) days after the receipt from the
Executive of such notice.
(l) General Release by the Executive. Notwithstanding any provision of this Agreement
to the contrary, the Company’s obligations, including but not limited, to all payments and benefits
pursuant to this Section 5, shall be conditioned upon the Executive’s execution and the
irrevocability of a release in such form as the Company in its sole discretion deems acceptable
(the “Release”). The lump sum cash payment (other than Accrued Benefits) required to be
paid pursuant to Section 5(f), Section 5(g) and Section 5(h) shall be paid on the
sixtieth (60th) day following the Termination Date conditioned on the Release becoming irrevocable
by such sixtieth (60th) day. The Company shall provide the Release to the Executive within five
(5) days of the Termination Date.
(m) No Mitigation; No Offset. In the event of any termination of employment, the
Executive shall be under no obligation to seek other employment and, amounts due the Executive
under this Agreement shall not be offset by any remuneration attributable to any subsequent
employment that he may obtain.
(n) Section 409A of the Code.
(i) To the extent required to comply with Section 409A of the Code, any payment or benefit
required to be paid under this Agreement on account of termination of the Executive’s service (or
any other similar term) shall be made only in
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connection with a “separation from service” with respect to the Executive within the meaning
of Section 409A of the Code.
(ii) In the event that the Executive is a “specified employee” (as described in Section 409A
of the Code), and any payment or benefit payable pursuant to this Agreement constitutes deferred
compensation under Section 409A of the Code, then the Company and the Executive shall cooperate in
good faith to undertake any actions that would cause such payment or benefit not to constitute
deferred compensation under Section 409A of the Code. In the event that, following such efforts,
the Company determines (after consultation with its counsel) that such payment or benefit is still
subject to the six-month delay requirement described in Section 409A(2)(b) of the Code in order for
such payment or benefit to comply with the requirements of Section 409A of the Code, then no such
payment or benefit shall be made before the date that is six months after the Executive’s
“separation from service” (as described in Section 409A of the Code) (or, if earlier, the date of
the Executive’s death). Any payment or benefit delayed by reason of the prior sentence (the
“Delayed Payment”) shall be paid out or provided in a single lump sum at the end of such
required delay period in order to catch up to the original payment schedule.
(iii) For purposes of applying the provisions of Section 409A of the Code to this Agreement,
each separately identified amount to which the Executive is entitled under this Agreement shall be
treated as a separate payment. In addition, to the extent permissible under Section 409A of the
Code, any series of installment payments under this Agreement shall be treated as a right to a
series of separate payments.
6. CONFIDENTIALITY: COOPERATION WITH REGARD TO LITIGATION; NON-DISPARAGEMENT; RETURN OF
COMPANY MATERIALS.
(a) Confidentiality. During the Employment Term and thereafter, the Executive shall
not, without the prior written consent of the Company, disclose to anyone or make use of any
Confidential Information as that term is defined in Section 6(c), except in the performance of his
duties hereunder or when required to do so by legal process, by any governmental agency having
supervisory authority over the business of the Company or by any administrative or legislative body
(including a committee thereof) that requires him to divulge, disclose or make accessible such
information. In the event that the Executive is so ordered, he shall give prompt written notice to
the Company in order to allow the Company the opportunity to object to or otherwise resist such
order.
(b) Disclosure of Agreement. During the Employment Term and thereafter, the Executive
shall not disclose the existence or contents of this Agreement beyond what is disclosed in the
Company’s proxy statement or documents filed with the government unless and to the extent such
disclosure is required by law, by a governmental agency, or in a document required by law to be
filed with a governmental agency or in connection with enforcement of his rights under this
Agreement. In the event that disclosure is so required, the Executive shall give prompt written
notice to the
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Company in order to allow the Company the opportunity to object to or otherwise resist such
requirement.
(c) Confidential Information. “Confidential Information” shall mean (i) all
information concerning the business of the Company or any Subsidiary including information relating
to any of its or their products, product development, trade secrets, agents, brokers, customers,
suppliers, finances, and business plans and strategies, and (ii) information regarding the
organization structure and the names, titles, status, compensation, benefits and other proprietary
employment-related aspects of the employees of the Company and the Company’s employment practices.
Excluded from the definition of Confidential Information is information (i) that is or becomes part
of the public domain, other than through the breach of this Agreement by the Executive or (ii)
regarding the Company’s business or industry properly acquired by the Executive in the course of
his career as an executive in the Company’s industry and independent of the Executive’s employment
by the Company. For this purpose, information known or available generally within the trade or
industry of the Company or any Subsidiary shall be deemed to be known or available to the public.
“Subsidiary” shall mean any corporation controlled directly or indirectly by the Company.
(d) Cooperation. The Executive agrees to cooperate with the Company, during the
Employment Term and thereafter (including following the Executive’s termination of employment for
any reason), by making himself reasonably available to testify on behalf of the Company in any
action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and to
assist the Company, or any affiliate, in any such action, suit, or proceeding, by providing
information and meeting and consulting with the representatives of or counsel to, the Company, or
any affiliate as requested; provided, however that the same does not materially interfere with his
then current professional activities.
(e) Non-disparagement. The Executive agrees that, during the Employment Term and
thereafter (including following the Executive’s termination of employment for any reason) he will
not make statements or representations, or otherwise communicate, directly or indirectly, in
writing, orally, or otherwise, or take any action which may, directly or indirectly, disparage the
Company or its affiliates or their respective officers, directors, employees, advisors, businesses
or reputations. The Company agrees that, during the Employment Term and thereafter (including
following the Executive’s termination of employment for any reason) the Company will not make
statements or representations, or otherwise communicate, directly or indirectly, in writing,
orally, or otherwise, or take any action which may directly or indirectly, disparage the Executive
or his business or reputation. Notwithstanding the foregoing, nothing in this Agreement shall
preclude either the Executive or the Company from making truthful statements or disclosures that
are required by applicable law, regulation, or legal process.
(f) Company Property. Upon any termination of employment, the Executive agrees to
deliver to the Company any Company property and any documents, notes, drawings, specifications,
computer software, data and other materials of any nature
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pertaining to any Confidential Information that are held by the Executive and will not take
any of the foregoing, or any reproduction of any of the foregoing, that is embodied in any tangible
medium of expression.
7. PROTECTION OF THE COMPANY’S BUSINESS/ NON-SOLICITATION OF EMPLOYEES
(a) Consideration. The Executive recognizes that the compensation provided pursuant
to this Agreement is an integral portion of the consideration to be paid by the Company to the
Executive.
(b) Non-Competition. The Executive recognizes the Company’s legitimate interest in
protecting, for a reasonable period of time following the termination of the Executive’s
employment, the accounts of the Company and its affiliates with which the Executive will be
associated during his employment. Accordingly, the Executive understands and agrees that for a
period of two (2) years following the termination of the Executive’s employment for any reason, the
Executive will not, directly or indirectly, (i) solicit, serve, sell to, divert, receive or
otherwise handle insurance-related business with any individual, partnership, corporation or
association that (A) is, or during the two-year period immediately preceding such termination, was
an agent, client, customer or account of the Company’s or any affiliate with which the Executive
was associated during his employment, or (B) is a person who has received a written proposal or
solicitation from the Company or any of its affiliates in the two (2) years immediately preceding
such termination; or (ii) solicit, place, market, accept, aid, counsel or consult in the
underwriting, renewal, discontinuance or replacement of any insurance (including self-insurance)
by, or handle self-insurance programs, insurance claims, risk management services or other
insurance administrative or service functions for, any account of the Company or its affiliates for
which he performed any of the foregoing functions during the two-year period immediately preceding
such termination.
(c) Non-solicitation. During the period beginning with the Effective Date and ending
two (2) years following the termination of the Executive’s employment, the Executive shall not
induce employees of the Company or its affiliates to terminate their employment; provided, however,
that the foregoing shall not be construed to prevent the Executive from engaging in generic
nontargeted advertising for employees generally. During such period, the Executive shall not hire,
either directly or through any employee, agent or representative, any employee of the Company or
any Subsidiary or any person who was employed by the Company or any Subsidiary within 180 days of
such intended hiring.
(d) Definitions. For purposes of Sections 6 and 7 all references to “the Company”
shall be deemed to include NYMAGIC, INC. and its Subsidiaries. For the purposes of the covenants
set forth in this Section 7, the words “directly or indirectly” as they modify a prohibited
activity shall include acting as an agent, representative or employee of any enterprise, which so
acts, and includes any direct or indirect participation in such acting enterprise as a material
creditor, owner, lender, partner, limited partner, joint venture, or stockholder, except as a
stockholder holding less than a
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one percent (1%) interest in a corporation whose shares are traded on a national securities
exchange or quoted on Nasdaq.
(e) Reasonableness of Restrictions. The Executive has carefully read and considered
the provisions of this Section 7, and having done so, agrees that the restrictions set
forth herein, including, but not limited to, the time period of the restrictions, the geographic
areas of the restrictions, and the scope of the restrictions are fair and reasonable, are supported
by sufficient and valid consideration, and the restrictions do not impose any greater restraint
than is necessary to protect the goodwill and other legitimate business interests of the Company
and its affiliated entities, officers, directors and shareholders. The Executive acknowledges that
these restrictions will not prevent him from obtaining gainful employment or cause him undue
hardship; that there are numerous other employment and business opportunities available to him that
are not affected by these restrictions; and that the Executive’s ability to earn a livelihood
without violating such restrictions is a material condition to employment with the Company.
(f) Legal Compliance. If it is determined by a court of competent jurisdiction in any
state that any restriction in this Section 7 is excessive in duration or scope or is
unreasonable or unenforceable under the laws of that state, it is the intention of the parties
hereto that such restriction may be modified or amended by such court to render it enforceable to
the maximum extent permitted by the law of that state.
(g) Breach. In addition to whatever other rights and remedies the Company may have at
equity or in law, if the Executive breaches any of the provisions contained in Sections 6
or 7, the Company (i) shall have its rights to injunctive relief under Section 8, and (ii)
shall have the right to immediately terminate all payments and benefits due under this Agreement.
The Executive acknowledges that such a breach of Sections 6 or 7 would cause irreparable
injury and that money damages would not provide an adequate remedy for the Company; provided,
however, the foregoing shall not prevent the Executive from contesting the issuance of any such
injunction on the ground that no violation or threatened violation of Sections 6 or 7 has
occurred.
(h) Survival. The terms and provisions of Sections 6 and 7 shall survive the
termination of this Agreement and the Employment Term.
8. INJUNCTIVE RELIEF.
Without intending to limit the remedies available to the Company, the Executive hereby
expressly acknowledges that any breach or threatened breach by the Executive of any of the terms of
this Agreement may result in significant and continuing injury to the Company, the monetary value
of which would be impossible to establish. Therefore, as the Executive acknowledges that the
Company has no adequate remedy at law in the event of any actual or threatened breach of any
provision of this Agreement, the Company shall be entitled to injunctive relief without the
necessity of posting a bond or other security or other equitable remedies in addition to any legal
relief or remedies the Company may elect to pursue. The provisions of this Section 8 shall
survive the termination of this Agreement.
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9. GOVERNING LAW/JURISDICTION.
This Agreement shall be governed by and construed and interpreted in accordance with the laws
of New York without reference to principles of conflict of laws. Subject to Section 10, the
Company and the Executive hereby consent to the jurisdiction of any or all of the following courts
for purposes of resolving any dispute under this Agreement: (i) the United States District Court
for the Southern District of New York or (ii) any of the courts of the State of New York. The
Company and the Executive further agree that any service of process or notice requirements in any
such proceeding shall be satisfied if the rules of such court relating thereto have been
substantially satisfied. The Company and the Executive hereby waive, to the fullest extent
permitted by applicable law, any objection which it or he may now or hereafter have to such
jurisdiction and any defense of inconvenient forum.
10. RESOLUTION OF DISPUTES.
Any controversy or claim arising out of or relating to this Agreement or any breach or
asserted breach hereof or questioning the validity and binding effect hereof arising under or in
connection with this Agreement shall be resolved by binding arbitration to be held in New York, New
York in accordance with the rules and procedures of the American Arbitration Association; provided,
however, that applications for injunctive relief arising under or in connection with Section 8
shall be submitted to the federal or state courts in the State of New York. Judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
11. SEVERABILITY.
In the event that any provision or portion of this Agreement shall be determined to be invalid
or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement
shall be unaffected thereby and shall remain in full force and effect to the fullest extent
permitted by law.
12. SURVIVORSHIP.
The respective rights and obligations of the Parties hereunder shall survive any termination
of the Executive’s employment to the extent necessary to the intended preservation of such rights
and obligations.
13. ASSIGNMENTS; SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the Company and to the
Executive and their respective heirs, successors and assigns, except that the Executive shall not
have the right to delegate his obligations hereunder or to assign his rights hereunder or any
interest herein. The Company and the Executive acknowledge and agree that this Agreement shall be
assigned or transferred in connection with the merger, consolidation, sale, or transfer of all, or
substantially all, of the assets of the Company.
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14. AMENDMENTS; WAIVERS.
No provision in this Agreement may be amended unless such amendment is agreed to in writing
and signed by the Executive and an authorized officer of the Company. Except as set forth herein,
no delay or omission to exercise any right, power or remedy accruing to any Party shall impair any
such right, power or remedy or shall be construed to be a waiver of or an acquiescence to any
breach hereof. No waiver by either Party of any breach by the other Party of any condition or
provision contained in this Agreement to be performed by such other Party shall be deemed a waiver
of a similar or dissimilar condition or provision at the same or any prior or subsequent time. Any
waiver must be in writing and signed by the Executive or an authorized officer of the Company, as
the case may be.
15. NOTICES.
Any notice given to a Party shall be in writing and shall be deemed to have been given when
delivered personally or sent by certified or registered mail, postage prepaid, return receipt
requested, duly addressed to the Party concerned at the address indicated below or to such changed
address as such Party may subsequently give such notice of:
if to the Company, to:
NYMAGIC, INC.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
if to the Executive, to:
Xxxxxxx XxXxxxxx
0 Xxxxxxx Xxxx
Xx Xx Xxx, XX 00000
0 Xxxxxxx Xxxx
Xx Xx Xxx, XX 00000
All such notices, requests, consents and other communications shall be deemed to have been
delivered and received (a) in the case of personal delivery or delivery by telecopy, on the date of
such delivery (or, if such date is not a business day, then on the next business day), (b) in the
case of dispatch by nationally-recognized overnight courier, on the next business day following
such dispatch and (c) in the case of mailing, on the third business day after the posting thereof.
16. EFFECT OF AGREEMENT ON OTHER BENEFITS.
Except as specifically provided in this Agreement, the existence of this Agreement shall not
be interpreted to preclude, prohibit or restrict the Executive’s participation in any other
employee benefit or other plans or programs in which the Executive currently participates.
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17. HEADINGS AND CONSTRUCTION.
The headings of the sections contained in this Agreement are for convenience only and shall
not be deemed to control or affect the meaning or construction of any provision of this Agreement.
18. ENTIRE AGREEMENT.
This Agreement contains the entire understanding and agreement between the Parties concerning
the subject matter hereof and, as of the Effective Date, supersedes all prior agreements,
understandings, discussions, negotiations and undertakings, whether written or oral, between the
Parties with respect thereto.
19. WITHHOLDING.
The compensation provided to the Executive pursuant to this Agreement shall be subject to any
withholdings and deductions required by any applicable tax laws.
20. COUNTERPARTS.
This Agreement may be executed in two or more counterparts.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written
above.
| NYMAGIC, INC. |
|||||
| By: | /s/ A. Xxxxxx Xxxxxx | ||||
| THE EXECUTIVE | |||||
| /s/ Xxxxxxx XxXxxxxx | |||||
| Xxxxxxx XxXxxxxx | |||||
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