CONSULTING AGREEMENT
Exhibit 10.5
This Consulting Agreement (this “Agreement’’) is made as of March 22, 2007 by and between
Xxxxxxx X. Xxxx, Xx., whose address is 000 Xxx Xxxxxx Xxxx, Xxxxxxxxx, XX 00000 (the “Consultant”)
and NYMAGIC, INC., a New York corporation, with its principal office located at 000 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx XX 00000 (the “Company”).
WHEREAS, the Consultant is a member of the Company’s Board of Directors and its Vice Chairman;
WHEREAS, the Company acknowledges Consultant’s skills and experience as an investment advisor
and seasoned executive,
WHEREAS, the Company desires to engage the Consultant to provide services beyond those which
would be expected of the Vice Chairman of the Board of Directors to assist the Company in
communicating and explaining its investment strategy to the investor community and in providing it
managerial advice and counsel; and,
WHEREAS, the Consultant is willing to provide the services the Company requires on the terms
and conditions set forth herein:
NOW THEREFORE, for valuable consideration, the adequacy of which is hereby acknowledged, the
Consultant and the Company agree as follows:
1. Recitals. The foregoing recitals are incorporated herein and constitute a part of this
Agreement.
2. Services. The Consultant’s primary role is to ensure that the Company’s asset management
strategy is communicated to and understood by the investor community. More specifically, from time
to time during the term of this Agreement, the Consultant shall provide the following services to
the Company:
| • | Participate in meetings with rating agencies e.g. A.M. Best Company, Standard & Poor’s and Fitch Ratings; | ||
| • | Participate in meetings and answer inquiries from analysts who cover the Company’s stock; | ||
| • | Meet with and respond to inquiries from large investors in the Company’s stock or debt; | ||
| • | Participate in quarterly earnings calls and other investor calls; | ||
| • | Participate in the Company’s investor road shows; and, | ||
| • | Represent the Company at industry conferences, e.g. those held by Conning Capital, Xxxxx, Bruyette, Woods, Xxxxxx Xxxxx Xxxxx and others. |
In addition, the Consultant shall attend the meetings of, and provide advice and counsel to,
the Company’s management committee and to the Company’s Chairman and President and Chief Executive
Officer as requested by them (the services enumerated above, together with attending the meetings
of, and providing advice and counsel to, the Company’s
management committee and its Chairman and President and Chief Executive Officer, the “Services”).
The Consultant shall devote as much time to the Services as is reasonably necessary to achieve
the objectives contemplated by this Agreement.
3. Compensation. The Company will compensate the Consultant for the Services by paying him an
annualized fee of $100,000 payable in four equal quarterly payments of $25,000, the first of which
shall be on the date hereof, and thereafter one, each at the end of June, September and December.
In addition, the Company may pay the Consultant a bonus at the discretion ofit’s the Human
Resources Committee of the Board of Directors of the Company upon the recommendation of the
Company’s Chairman. The bonus shall have a range of from $0 to $100,000 and have a target of
$50,000.The Company will also reimburse the Consultant for all reasonable and necessary expenses he
incurs in connection with the Services promptly upon its receipt of invoices therefor.
4. Taxes. The Consultant acknowledges that he is self employed, that the Company will not
withhold taxes and that he shall be responsible for the payment of all taxes, self-employment taxes
and income taxes applicable to the Services.
5. Term and Termination. (a) This Agreement shall terminate on December 31, 2007, unless it is
extended by mutual agreement, or terminated earlier as provided for herein.
(b) Either party may terminate this Agreement at any time, on thirty (30) days prior written
notice, which notice shall specify the exact date of termination.
(c) The Company may terminate this Agreement at any time in the event the Consultant ceases to
be a member of the Company’s Board of Directors.
(d) This Agreement will terminate immediately upon the merger or consolidation of the Company
into another corporation; the sale of all or substantially all of its assets; its dissolution
and/or its liquidation; or, the death of the Consultant.
Upon the termination of this Agreement for any reason other than the merger or consolidation
of the Company into another corporation, or the sale of all or substantially all of its assets, the
Consultant shall be entitled to his pro rata annualized fee through the date of his termination.
In the event the termination of this Agreement results from the merger or consolidation of the
Company into another corporation, or the sale of all or substantially all of its assets, the
Consultant shall be entitled to the entire amount of his annualized fee, with the then unpaid
portion thereof payable upon the consummation of such merger or sale.
6. Independent Contractor Status. Nothing in this Agreement shall be deemed to create any form
of partnership, employer-employee relationship, or joint venture between the Company and the
Consultant.
7. Indemnification. The to the fullest extent permitted by law, the Company shall indemnify
the Consultant from and against any losses, claims, damages or liabilities (or actions,
including shareholder actions, in respect thereof) related to or arising out of the
Consultant’s engagement hereunder, and the Company will reimburse the Consultant for all
reasonable expenses (including counsel fees) as they are incurred by him in connection with
investigating, preparing or defending any such action or claim.
8. Assignment. This Agreement is personal to the Consultant, and neither the Company nor the
Consultant may assign its rights or delegate its obligations hereunder without the prior written
consent of the other party; nor shall this Agreement inure to the benefit of the heirs and
successors of the parties hereto.
9. Separability. The invalidity or unenforceability, in whole or in part, of any provision,
term or condition hereof shall not affect the validity or enforceability of the remainder of such
provision, term or condition or of any other provision, term, or condition.
10. Governing Law. This Agreement and any disputes arising or resulting from this Agreement
exclusively shall be construed and governed by the laws of the State of New York without regard to
its rules concerning conflicts of laws. The Consultant expressly acknowledges that he is subject to
jurisdiction of the courts of the State of New York.
11. Interpretation. Captions or title sections of this Agreement are for reference purpose
only and do not constitute terms or conditions hereof. The parties acknowledge that they have
thoroughly reviewed this Agreement and bargained over its terms.
12. Entire Agreement. This Agreement constitutes the entire agreement between the Company and
the Consultant relating to the Services.
13. Notices. All notices and other communications in connection with this Agreement shall be
in writing and shall be deemed to have been received by a party when actually received in the case
of hand delivery, or two (2) days after mailing by a nationally recognized overnight carrier, to
each party at the addresses shown below:
If to the Consultant:
|
If to the Company: | |
Xxxxxxx X. Xxxx, Xx.
|
NYMAGIC, INC. | |
000 Xxx Xxxxxx Xxxx
|
Attn: Xxxx X. Xxxx, Esq. | |
Xxxxxxxxx, XX 00000
|
000 Xxxxx Xxxxxx, 00xx Xxxxx | |
| Xxx Xxxx, XX 00000 |
14. Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
| Xxxxxxx X. Xxxx, Xx. | NYMAGIC, INC. | ||||
/s/ Xxxxxxx X. Xxxx, Xx.
|
By: | /s/ Xxxx X. Xxxx | |||
