-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, O1h6xD9XxynVdOEmF9oA7mHgETFkPfdz2WuzhS0BpBwXnLA3VMiWmwpA5QNA/OWx DisC2739QoKMPspUTxZF5g== 0000950152-05-009644.txt : 20051130 0000950152-05-009644.hdr.sgml : 20051130 20051130171505 ACCESSION NUMBER: 0000950152-05-009644 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20051130 DATE AS OF CHANGE: 20051130 GROUP MEMBERS: A. GEORGE KALLOP GROUP MEMBERS: BENNETT H. TOLLEFSON CHARITABLE LEAD UNITRUST GROUP MEMBERS: BLACKMAN CHARITABLE REMAINDER TRUST GROUP MEMBERS: GEORGE R. TRUMBULL, III GROUP MEMBERS: LIONSHEAD INVESTMENTS, LLC GROUP MEMBERS: LOUISE B. BLACKMAN TOLLEFSON FAMILY FOUNDATION GROUP MEMBERS: LOUISE B. TOLLEFSON 2000 FLORIDA INTANGIBLE TAX TRUST GROUP MEMBERS: LOUISE B. TOLLEFSON CHARITABLE LEAD ANNUITY TRUST GROUP MEMBERS: MARK W. BLACKMAN GROUP MEMBERS: WILLIAM J. MICHAELCHECK FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MARINER PARTNERS INC CENTRAL INDEX KEY: 0001168360 IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 780 THIRD AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2127586200 MAIL ADDRESS: STREET 1: 780 THIRD AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NYMAGIC INC CENTRAL INDEX KEY: 0000847431 STANDARD INDUSTRIAL CLASSIFICATION: SURETY INSURANCE [6351] IRS NUMBER: 133534162 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-43571 FILM NUMBER: 051235330 BUSINESS ADDRESS: STREET 1: 919 THIRD AVENUE, 10TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2125510600 MAIL ADDRESS: STREET 1: 919 THIRD AVENUE, 10TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D/A 1 j1724701sc13dza.htm NYMAGIC, INC. FORM SC 13D/A NYMAGIC, INC. Form SC 13D/A
 

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 6)

NYMAGIC, INC.
(Name of Issuer)

COMMON STOCK, $1.00 PAR VALUE
(Title of Class of Securities)

629484106
(CUSIP Number)

William J. Michaelcheck
Mariner Partners, Inc.
500 Mamaroneck Avenue
Harrison, NY 10528

Copy to:
Paul J. Hart, Esq.
NYMAGIC, INC.
General Counsel and Secretary
919 Third Avenue, 10th Floor
New York, NY 10022
212-551-0600
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

October 12, 2005
(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. þ (with respect to Mark W. Blackman)

 

             
CUSIP No. 629484106
  1. Name of Reporting Person:
Mariner Partners, Inc.		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) þ  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
OO [Not yet determined]
  5. Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
Delaware
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
0
8. Shared Voting Power:
1,350,000
9. Sole Dispositive Power:
0
10.Shared Dispositive Power:
1,350,000 (includes 1,350,000 shares that the reporting person has the option to purchase within 60 days)
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
1,350,000
  12.Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
15.5%
  14.Type of Reporting Person (See Instructions):
CO

2

 

             
CUSIP No. 629484106
  1. Name of Reporting Person:
Mark W. Blackman		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) þ  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
Not Applicable.
  5. Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
U.S.A.
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
705,000 (includes 15,000 shares that the reporting person has the option to purchase within 60 days)
8. Shared Voting Power:
1,350,000
9. Sole Dispositive Power:
705,000 (includes 15,000 shares that the reporting person has the option to purchase within 60 days)
10.Shared Dispositive Power:
225,000 (includes 225,000 shares on which the reporting person has granted options)
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
2,055,000
  12.Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
þ
  13.Percent of Class Represented by Amount in Row (11):
23.6%
  14.Type of Reporting Person (See Instructions):
IN

3

 

             
CUSIP No. 629484106
  1. Name of Reporting Person:
Lionshead Investments, LLC		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) þ  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
Not Applicable.
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
Connecticut
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
250,000
8. Shared Voting Power:
1,350,000
9. Sole Dispositive Power:
150,000
10.Shared Dispositive Power:
325,000 (includes 325,000 shares on which the reporting person has granted options)
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
1,600,000
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
þ
  13.Percent of Class Represented by Amount in Row (11):
18.3%
  14.Type of Reporting Person (See Instructions):
OO

4

 

             
CUSIP No. 629484106
  1. Name of Reporting Person:
Blackman Charitable Remainder Trust		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) þ  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
Not Applicable.
  5. Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
Connecticut
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
75,000
8. Shared Voting Power:
0
9. Sole Dispositive Power:
75,000
10.Shared Dispositive Power:
0
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
75,000
  12.Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
0.1%
  14.Type of Reporting Person (See Instructions):
OO

5

 

             
CUSIP No. 629484106
  1. Name of Reporting Person:
Louise B. Tollefson 2000 Florida Intangible Tax Trust Dated 12/12/00		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) þ  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
Not Applicable.
  5. Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
Florida
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
3,074
8. Shared Voting Power:
1,350,000
9. Sole Dispositive Power:
3,074
10.Shared Dispositive Power:
861,409 (includes 861,409 shares on which the reporting person has granted options)
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
1,353,074
  12.Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
15.5%
  14.Type of Reporting Person (See Instructions):
OO

6

 

             
CUSIP No. 629484106
  1. Name of Reporting Person:
Louise B. Blackman Tollefson Family Foundation dated 3/24/98		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) þ  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
Not Applicable.
  5. Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
Florida
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
0
8. Shared Voting Power:
1,350,000
9. Sole Dispositive Power:
0
10.Shared Dispositive Power:
38,591 (includes 38,591 shares on which the reporting person has granted options)
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
1,350,000
  12.Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
þ
  13.Percent of Class Represented by Amount in Row (11):
15.5%
  14.Type of Reporting Person (See Instructions):
OO

7

 

             
CUSIP No. 629484106
  1. Name of Reporting Person:
Louise B. Tollefson Charitable Lead Annuity Trust dated 3/30/00		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) þ  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
Not Applicable.
  5. Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
Florida
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
0
8. Shared Voting Power:
0
9. Sole Dispositive Power:
0
10.Shared Dispositive Power:
0
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
0
  12.Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
0.0%
  14.Type of Reporting Person (See Instructions):
OO

8

 

             
CUSIP No. 629484106
  1. Name of Reporting Person:
Bennett H. Tollefson Charitable Lead Unitrust dated 3/30/00		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) þ  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
Not Applicable.
  5. Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
Florida
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
0
8. Shared Voting Power:
0
9. Sole Dispositive Power:
0
10.Shared Dispositive Power:
0
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
0
  12.Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
0.0%
  14.Type of Reporting Person (See Instructions):
OO

9

 

             
CUSIP No. 629484106
  1. Name of Reporting Person:
William J. Michaelcheck		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) þ  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
OO [Not yet determined]
  5. Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
U.S.A.
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
7,500 (includes 7,500 shares that the reporting person has the option to purchase within 60 days)
8. Shared Voting Power:
1,350,000
9. Sole Dispositive Power:
7,500 (includes 7,500 shares that the reporting person has the option to purchase within 60 days)
10.Shared Dispositive Power:
1,350,000 (includes 1,350,000 shares on which the reporting person has granted options)
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
1,357,500
  12.Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
15.5%
  14.Type of Reporting Person (See Instructions):
IN

10

 

             
CUSIP No. 629484106
  1. Name of Reporting Person:
A. George Kallop		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) þ  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
OO [Not yet determined]
  5. Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
U.S.A.
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
24,200 (includes 15,000 share that the reporting person has the option to purchase within 60 days)
8. Shared Voting Power:
0
9. Sole Dispositive Power:
24,200 (includes 15,000 shares that the reporting person has the option to purchase within 60 days)
10.Shared Dispositive Power:
236,250 (includes 236,250 shares that the reporting person has the option to purchase within 60 days)
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
260,450
  12.Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
3.0%
  14.Type of Reporting Person (See Instructions):
IN

11

 

             
CUSIP No. 629484106
  1. Name of Reporting Person:
George R. Trumbull, III		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) þ  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
OO [Not yet determined]
  5. Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
U.S.A.
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
50,100 (includes 37,500 shares that the reporting person has the option to purchase within 60 days)
8. Shared Voting Power:
0
9. Sole Dispositive Power:
50,100 (includes 37,500 shares that the reporting person has the option to purchase within 60 days)
10.Shared Dispositive Power:
337,500 (includes 337,500 shares that the reporting person has the option to purchase within 60 days)
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
387,600
  12.Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
4.4%
  14.Type of Reporting Person (See Instructions):
IN

12

 

This Amendment No. 6 to Schedule 13D is filed by the reporting persons pursuant to Rule 13d-2(a) under the Securities Exchange Act of 1934, as amended. This Amendment No. 6 to the Schedule 13D amends and supplements:
  •   the Schedule 13D, as filed with the Securities and Exchange Commission (the “SEC”) on March 4, 2002, as amended by
 
  •   Amendment No. 1, as filed with the SEC on April 10, 2003, as amended by
 
  •   Amendment No. 2, as filed with the SEC on October 22, 2003, as amended by
 
  •   Amendment No. 3, as filed with the SEC on January 8, 2004, as amended by
 
  •   Amendment No. 4, as filed with the SEC on March 25, 2004, as amended by
 
  •   Amendment No. 5, as filed with the SEC on February 1, 2005.
Item 1: Security and Issuer
  (a)   This statement on Schedule 13D relates to shares of common stock, $1.00 par value, of NYMAGIC, INC., a New York corporation (“NYMAGIC”).
 
  (b)   NYMAGIC’s principal offices are located at:
919 Third Avenue, 10th Floor
New York, NY 10022
Item 2: Identity and Background
Item 2 is amended and supplemented by adding the following:
             
1.   The business address of Mark W. Blackman is:
    919 Third Avenue, 10th Floor
    New York, NY 10022
 
            
2.   (a)   Name:          George R. Trumbull, III
 
            
 
  (b)   Residence or Business Address:   919 Third Avenue, 10th Floor
 
          New York, NY 10022
 
            
 
  (c)   Present Principal Occupation:   Chairman of the Board of Directors of
 
          NYMAGIC, INC.
 
            
    (d)   During the last five years, Mr. Trumbull has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
 
            
    (e)   During the last five years, Mr. Trumbull has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which proceeding he was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violations with respect to such laws.
 
            
    (f)   Citizenship: U.S.A.
 
            
3.   A. George Kallop’s Present Principal Occupation is: President and Chief Executive Officer of NYMAGIC.
 
            
    A. George Kallop’s Residence or Business Address is:
    919 Third Avenue, 10th Floor
    New York, NY 10022

13

 

Item 3: Source and Amount of Funds or Other Consideration
No financial consideration was paid for the voting or board nomination rights described in Item 6. Mariner and Messrs. Trumbull and Kallop have not yet determined how they will fund the exercise price should any of them exercise any of the options described in Item 6.
Item 4: Purpose of Transaction
Item 4 is amended and supplemented by adding the following:
On April 4, 2002, Mariner Partners, Inc. (“Mariner”) entered into an agreement with each of William D. Shaw, Jr. and A. George Kallop, whereby Mariner agreed to hold a portion of the option covering 315,000 shares of NYMAGIC as nominee for each of Mr. Shaw and Mr. Kallop, who agreed to be bound to the terms of the Voting Agreement (as defined below). Mr. Kallop has a contractual relationship with Mariner relating to consulting services. Mr. Shaw had a contractual relationship with Mariner relating to investment services, but effective January 1, 2004, Mr. Shaw waived his interest in the option and the contractual relationship terminated. Mr. Shaw became eligible to participate in Mariner’s bonus pool as consideration for waiving his interest in the option.
Effective April 12, 2005, George R. Trumbull, III, who at that time was NYMAGIC’s chairman and chief executive officer, entered into an agreement with Mariner. Pursuant to the agreement, Mr. Trumbull is entitled to receive compensation in consideration of services provided to Mariner relating to NYMAGIC and under which Mariner agreed to hold a portion of the option covering 450,000 shares of NYMAGIC as nominee for Mr. Trumbull, who agreed to be bound by the Voting Agreement. In consideration for his participation in the option, Mr. Trumbull surrendered the shares of Mariner held by him back to Mariner and received a refund of the purchase price.
On February 20, 2002, Mariner entered into a voting agreement with Mark W. Blackman; Lionshead Investments, LLC (which was known as Blackman Investments, LLC); John N. Blackman, Jr. (the “Blackman Trustee”) as trustee of the Blackman Charitable Remainder Trust (the “Blackman Co-Trust”); Kathleen Blackman as co-trustee with the Blackman Trustee of the Blackman Co-Trust, and Robert G. Simses, as trustee of the Louise B. Tollefson 2000 Florida Intangible Tax Trust, and Robert G. Simses and First Union National Bank (now Wachovia Bank, N.A.) as co-trustees of the Louise B. Tollefson Charitable Lead Annuity Trust (the “CLAT”) and the Bennett L. Tollefson Charitable Lead Unitrust (the “CLUT”), which voting agreement was amended on March 1, 2002 and further amended by Amendment No. 2 on January 27, 2003, Amendment No. 3 on March 12, 2003 and Amendment No. 4 on February 24, 2004 (the “Voting Agreement”).
As further described in Item 6, on October 12, 2005, Mariner entered into an amended and restated voting agreement (as it may be further amended, restated or supplemented from time to time, the “A/R Voting Agreement”) with Mark W. Blackman, Lionshead Investments, LLC (“Lionshead Investments”), Robert G. Simses (the “Louise Blackman Trustee”) as trustee of the Louise B. Tollefson 2000 Florida Intangible Tax Trust and as trustee of the Louise B. Blackman Tollefson Family Foundation (collectively, the “Participating Shareholders”). Although the CLAT and the CLUT were parties to the Voting Agreement, neither the CLAT nor the CLUT is a party to the A/R Voting Agreement because each previously transferred all of their respective shares of NYMAGIC prior to the date the A/R Voting Agreement. In addition, the parties to the A/R Voting Agreement determined it was not necessary to include the Blackman Co-Trust as a party to the A/R Voting Agreement.
After giving effect to the A/R Voting Agreement, as further described in Item 6, Mariner had the right to vote the Voting Shares (as defined in Item 6) representing approximately 15.5% of the voting stock of NYMAGIC, with the approval of two of three of the Participating Shareholders (as defined in Item 6) subject to certain provisions of the A/R Voting Agreement further described in Item 6. In this manner, the parties to the A/R Voting Agreement are able to use their combined shareholder voting power to influence key matters that require shareholder approval. Mariner and the Participating Shareholders reserve the right to undertake a proxy or consent solicitation, or to take shareholder action by written consent, to accomplish their objectives.
The parties to the A/R Voting Agreement may decide to cause additional changes to the way NYMAGIC is operated, but those changes have not yet been determined. It is possible that they will cause NYMAGIC to enter into new lines of business or to exit existing lines of business. Assets may be sold or purchased. Business or corporate transactions of various types may be considered. In addition to the executive officers mentioned above, it is possible that Mariner employees may serve as officers, employees or consultants of NYMAGIC.

14

 

Item 5: Interest in Securities of the Issuer
Item 5 is amended and supplemented by adding the following:
As further described above in Item 4 and below in Item 6, effective January 1, 2004, William D. Shaw, Jr. waived his interest in the option for 315,000 shares of NYMAGIC and his contractual relationship with Mariner terminated, and effective April 12, 2005, George R. Trumbull, III entered into an agreement with Mariner to provide services to Mariner relating to NYMAGIC under which Mariner agreed to hold a portion of the option covering 450,000 shares of NYMAGIC as nominee for Mr. Trumbull, who agreed to be bound by the Voting Agreement.
After giving effect to the A/R Voting Agreement, Mariner and the Participating Shareholders shared voting power pursuant to the A/R Voting Agreement with respect to 1,350,000 shares of common stock of NYMAGIC, representing approximately 15.5% of the outstanding shares of common stock of NYMAGIC. The Participating Shareholders have power to dispose of their respective shares of NYMAGIC, which are further identified in Item 6, provided that the transferee agrees to be bound by the A/R Voting Agreement. Pursuant to the A/R Voting Agreement, Mariner holds an option to acquire 1,350,000 shares of common stock from the Participating Shareholders, representing approximately 15.5% of the outstanding shares of common stock of NYMAGIC as of October 12, 2005. The A/R Voting Agreement permits Mariner to assign the options to William J. Michaelcheck, William D. Shaw, Jr., George R. Trumbull, III, A. George Kallop or any other employee or consultant working for Mariner in connection with NYMAGIC or to any other person agreed to by at least two Participating Shareholders; provided that any assignment of the option by an assignee to a spouse or a child or to a trust for the benefit of a spouse or child shall not require the approval of any Participating Shareholder. Option transferees must agree to be bound to the terms of the A/R Voting Agreement.
As of October 12, 2005, the date of the A/R Voting Agreement, Blackman Remainder Charitable Trust, CLAT and CLUT each ceased being a beneficial ownership of 5% or more of shares of NYMAGIC.
As of October 12, 2005 each of Messrs. Trumbull and Kallop amended and restated their agreements with Mariner by, among other things, reducing the number of shares of NYMAGIC subject to the portion of the option held by Mariner as their nominee from 450,000 to 337,500 and from 315,000 to 236,250, respectively.

15

 

The following chart sets forth beneficial ownership information with respect to each of the reporting persons as of October 12, 2005:
                                                         
    Number of Shares Owned by Each Reporting Person
                                    Aggregate No.   Percentage    
    Sole   Shared   Sole   Shared   of Shares   of Shares   No. of Shares
Name of   Voting   Voting   Dispositive   Dispositive   Beneficially   Beneficially   Held Subject to
Reporting Person   Power   Power   Power   Power   Owned   Owned (1)   Mariner Option
Mariner Partners, Inc.
     0       1,350,000       0       1,350,000       1,350,000       15.5 %     0  
 
                                                        
Mark W. Blackman
     705,000       1,350,000       705,000       225,000 (2)     2,055,000       23.6 %     225,000  
 
                                                        
Lionshead Investments, LLC
     250,000       1,350,000       150,000       325,000 (3)     1,600,000       18.3 %     225,000  
 
                                                        
Blackman Charitable Remainder Trust
     75,000       0       75,000       0       75,000       0.1 %     0  
 
                                                        
Louise B. Tollefson 2000 Florida Intangible Trust
     3,074       1,350,000       3,074       861,409       1,353,074       15.5 %     861,409  
 
                                                        
Louse B. Blackman Tollefson Family Foundation
     0       1,350,000       0       38,591       1,350,000       15.5 %     38,591  
 
                                                        
Louise B. Tollefson Charitable Lead Annuity Trust
     0       0       0       0       0       0.0 %     0  
 
                                                        
Bennett H. Tollefson Charitable Lead Unitrust
     0       0       0       0       0       0.0 %     0  
 
                                                        
William J. Michaelcheck
     7,500       1,350,000       7,500 (4)     1,350,000       1,357,500       15.5 %     0  
 
                                                        
A. George Kallop
     24,200       0       24,200 (5)     236,250       260,450 (6)     3.0 %     0  
 
                                                        
George R. Trumbull, III
     50,100       0       50,100 (7)     337,500       387,600 (6)     4.4 %     0  
 
                                                        
 
(1)   Percentages are calculated in accordance with Rule 13d-3 under the Securities Exchange Act of 1934, as amended.
 
(2)   Includes 15,000 shares issuable pursuant to options that are exercisable within 60 days. Excludes 100,000 shares which Mark W. Blackman may be deemed to beneficially own as guardian of minors, together owning 50,000 shares, and spouse owning 50,000, and may be deemed to have power to vote such 100,000 shares. Mark W. Blackman disclaims beneficial ownership of such 100,000 shares.
 
(3)   Includes 100,000 shares subject to the option granted by Lionshead Investments to an investor as described in NYMAGIC’s Current Report on Form 8-K dated January 31, 2003 and 225,000 shares subject to an option granted to Mariner under the A/R Voting Agreement.
 
(4)   Includes 7,500 shares issuable pursuant to options held by Mr. Michaelcheck that are exercisable within 60 days.
 
(5)   Includes 15,000 shares issuable pursuant to options held by Mr. Kallop that are exercisable within 60 days.

16

 

(6)   Beneficial ownership of these shares is being reported by A. George Kallop and George R. Trumbull, III because of a possible interpretation that they beneficially own the shares underlying the portion of the options assigned to each of them by Mariner.
 
(7)   Includes 37,500 shares issuable pursuant to options held by Mr. Trumbull that are exercisable within 60 days.
Each of the reporting persons disclaims beneficial ownership of the shares for which it does not have dispositive power.
Item 6: Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer
Item 6 is amended and supplemented by adding the following:
On April 4, 2002, Mariner entered into an agreement with each of William D. Shaw, Jr. and A. George Kallop, whereby Mariner agreed to hold a portion of the option covering 315,000 shares of NYMAGIC as nominee for each of Mr. Shaw and Mr. Kallop, who agreed to be bound to the terms of the Voting Agreement. Mr. Kallop has a contractual relationship with Mariner relating to consulting services. Mr. Shaw had a contractual relationship with Mariner relating to investment services, but effective January 1, 2004, Mr. Shaw waived his interest in the option and the contractual relationship terminated. Mr. Shaw became eligible to participate in Mariner’s bonus pool as consideration for waiving his interest in the option.
Effective April 12, 2005, George R. Trumbull, III, who at that time was NYMAGIC’s chairman and chief executive officer, entered into an agreement with Mariner. Pursuant to the agreement, Mr. Trumbull is entitled to receive compensation in consideration of services provided to Mariner relating to NYMAGIC and under which Mariner agreed to hold a portion of the option covering 450,000 shares of NYMAGIC as nominee for Mr. Trumbull, who agreed to be bound to the Voting Agreement. In consideration for his participation in the option, Mr. Trumbull surrendered the shares of Mariner held by him back to Mariner and received a refund of the purchase price.
As described in Item 4, Mariner entered into an A/R Voting Agreement.
The following shares are currently subject to the A/R Voting Agreement (the “Voting Shares”):
  (i)   225,000 Shares of NYMAGIC held by Mark W. Blackman;
 
  (ii)   225,000 Shares of NYMAGIC held by Lionshead Investments; and
 
  (iii)   861,409 Shares of NYMAGIC held by the Louise B. Tollefson 2000 Florida Intangible Tax Trust and 38,591 shares held by the Louise B. Blackman Tollefson Family Foundation (hereinafter the “Louise Blackman Shares”).
For the purposes of the A/R Voting Agreement there are three “Participating Shareholders”:
  (i)   Mark W. Blackman;
 
  (ii)   Lionshead Investments; and
 
  (iii)   The Louise Blackman Trustee as sole trustee of the Louise B. Tollefson 2000 Florida Intangible Tax Trust dated December 12, 2000 and the Louise B. Blackman Tollefson Family Foundation dated March 24, 1998 (such trusts being collectively, the “Louise Blackman Trusts”).
Pursuant to the A/R Voting Agreement, Mariner has been granted the right, with (and only with) the written approval of two of the three Participating Shareholders, to exercise all of the rights of a shareholder of NYMAGIC and to vote the Voting Shares at all meetings of shareholders. 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. However, Mariner does not have the right to vote on or consent to (a) the merger or consolidation of NYMAGIC 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 NYMAGIC, unless two of the three Participating Shareholders consent thereto in writing. In the event that two of the three Participating Shareholders fail to approve any vote by Mariner on any

17

 

matter referred to in the preceding sentence, Mariner shall not vote on such matter and instead each Participating Shareholder may vote his or its Voting Shares on that matter.
Pursuant to the terms of the A/R Voting Agreement, (i) Mariner is entitled to nominate four candidates for election to the Board; (ii) Robert G. Simses is entitled to nominate two candidates for election to the Board, including himself; (iii) Mark W. Blackman is entitled to nominate one candidate for election to the Board; and (iv) Lionshead Investments is entitled to nominate one candidate for election to the Board, provided that one of the candidates nominated to the Board by Robert G. Simses and each of the candidates nominated to the Board by Mark W. Blackman and Lionshead Investments 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 (“Independent Directors”). The Chief Executive Officer of NYMAGIC is entitled to nominate three directors for election to the Board, all of whom shall be Independent Directors. The Board consists of eleven directors.
The Participating Shareholders have agreed, consistent with director fiduciary duties, to 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 any of Robert G. Simses, Mark W. Blackman, or Lionshead Investments does not nominate a candidate for the Board as authorized under the terms of the A/R Voting Agreement, Mariner is entitled to nominate a number of candidates equal to the number not nominated by these individuals.
The A/R Voting Agreement also gives Mariner the right to purchase at any time and from time to time up to 1,350,000 shares of NYMAGIC from the Participating Shareholders in the amounts set forth below opposite each such Participating Shareholder’s name:
  (i)   Mark W. Blackman — 225,000 shares;
 
  (ii)   Lionshead Investments — 225,000 shares;
 
  (iii)   Louise B. Tollefson 200 Florida Intangible Tax Trust — 861,409 shares; and
 
  (iv)   Louise B. Blackman Tollefson Family Foundation — 38,591 shares.
The exercise price for the options is as follows:
                                 
From
   September 12, 2005   to   November 14, 2005   $ 22.50  
From
   November 15, 2005   to   February 14, 2006   $ 22.75  
From
   February 15, 2006   to   May 14, 2006   $ 23.00  
From
   May 15, 2006   to   August 14, 2006   $ 23.25  
From
   August 15, 2006   to   November 14, 2006   $ 23.50  
From
   November 15, 2006   to   February 14, 2007   $ 23.75  
From
   February 15, 2007   to   May 14, 2007   $ 24.00  
From
   May 15, 2007   to   August 14, 2007   $ 24.25  
From
   August 15, 2007   to   November 14, 2007   $ 24.50  
From
   November 15, 2007   to   February 14, 2008   $ 24.75  
From
   February 15, 2008   to   May 14, 2008   $ 25.00  
From
   May 15, 2008   to   August 14, 2008   $ 25.25  
From
   August 15, 2008   to   November 14, 2008   $ 25.50  
From
   November 15, 2008   to   February 14, 2009   $ 25.75  
From
   February 15, 2009   to   May 14, 2009   $ 26.00  
From
   May 15, 2009   to   August 14, 2009   $ 26.25  
From
   August 15, 2009   to   November 14, 2009   $ 26.50  
From
   November 15, 2009   to   February 14, 2010   $ 26.75  
From
   February 15, 2010   to   May 14, 2010   $ 27.00  
From
   May 15, 2010   to   August 14, 2010   $ 27.25  
From
   August 15, 2010   to   November 14, 2010   $ 27.50  

18

 

                                 
From
   November 15, 2010   to   December 31, 2010   $ 27.75  
Less, in each case, the cumulative amount of dividends paid by NYMAGIC in respect of each share of its common stock from January 31, 2003 through the date Mariner purchases such option shares.
The A/R Voting Agreement terminates upon the earliest to occur of the following dates (the “Termination Date”):
  (i)   December 31, 2010;
 
  (ii)   the merger or consolidation of NYMAGIC 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 as an advisor to NYMAGIC; or
 
  (iv)   upon written notice of such termination to Mariner from all of the Participating Shareholders, provided, that the options shall continue in full force and effect until the close of business on December 31, 2010.
The Participating Shareholders may transfer their Voting Shares; provided that the transferred shares remain subject to the A/R Voting Agreement.
The summary of the A/R Voting Agreement contained in this Schedule 13D is qualified in its entirety by reference to the full text of the A/R Voting Agreement, which is attached hereto as Exhibit 99.1, and is incorporated herein by reference.
Item 7: Material to be Filed as Exhibits
     
99.1
  Amended and Restated Voting Agreement dated as of October 12, 2005 (filed herewith)
99.2
  Joint Filing Agreement and Power of Attorney (filed herewith)

19

 

SIGNATURE
     After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
October 12, 2005
         
  MARINER PARTNERS, INC.
 		  
  By:   /s/ William J. Michaelcheck    
    William J. Michaelcheck,   
    Chairman   
 
     
  /s/ William J. Michaelcheck    
  William J. Michaelcheck
 		  
     
 
     
  /s/ William J. Michaelcheck    
  Mark W. Blackman,   
  By: William J. Michaelcheck, Attorney-in-Fact   
 
  LIONSHEAD INVESTMENTS, LLC
 		  
  By:   /s/ William J. Michaelcheck    
    William J. Michaelcheck, Attorney-in-Fact   
       
 
  BLACKMAN CHARITABLE REMAINDER TRUST
 		  
  By:   /s/ William J. Michaelcheck    
    William J. Michaelcheck, Attorney-in-Fact   
       
 
  LOUISE B. TOLLEFSON 2000 FLORIDA INTANGIBLE TAX TRUST DATED 12/12/00
 		  
  By:   /s/ William J. Michaelcheck    
    William J. Michaelcheck, Attorney-in-Fact   
       
 
  LOUISE B. BLACKMAN TOLLEFSON FAMILY FOUNDATION DATED 3/24/98
 		  
  By:   /s/ William J. Michaelcheck    
    William J. Michaelcheck, Attorney-in-Fact   
       
 
  LOUISE B. TOLLEFSON CHARITABLE LEAD ANNUITY TRUST DATED 3/30/00
 		  
  By:   /s/ William J. Michaelcheck    
    William J. Michaelcheck, Attorney-in-Fact   
       
 

20

 

         
  BENNETT H. TOLLEFSON CHARITABLE LEAD UNITRUST DATED 3/30/00  
  By:   /s/ William J. Michaelcheck    
   
 
       
 
  William J. Michaelcheck, Attorney-in-Fact   
  /s/ William J. Michaelcheck    
  A. George Kallop   
  By William J. Michaelcheck, Attorney-in-Fact   
 
     
  /s/ William J. Michaelcheck    
  George R. Trumbull, III   
  By William J. Michaelcheck, Attorney-in-Fact   
 

21

EX-99.1 2 j1724701exv99w1.htm EX-99.1 EX-99.1
 

Exhibit 99.1
NYMAGIC, INC.
AMENDED AND RESTATED VOTING AGREEMENT
AMENDED AND RESTATED VOTING AGREEMENT (this “Agreement”) dated as of            October 12, 2005 by and among (i) MARK W. BLACKMAN, (ii) LIONSHEAD INVESTMENTS, LLC (“Lionshead Investments”), ROBERT G. SIMSES (formerly the “Tollefson Trustee” and hereinafter, the “Louise Blackman Trustee”) as trustee of the Louise B. Tollefson 2000 Florida Intangible Tax Trust and as trustee of the Louise B. Blackman Tollefson Family Foundation, (the “Participating Shareholders”); and (iv) MARINER PARTNERS, INC. (“Mariner”).
WHEREAS, the Participating Shareholders (including Lionshead Investments, which was then known as Blackman Investments, LLC) and Mariner, together with John N. Blackman, Jr. (the “Blackman Trustee”) as trustee of the Blackman Charitable Remainder Trust (the “Blackman Co-Trust”), Kathleen Blackman as co-trustee with the Blackman Trustee of the Blackman Co-Trust, and Robert G. Simses and First Union National Bank (now Wachovia Bank, N.A.) as co-trustees of the Louise B. Tollefson Charitable Lead Annuity Trust (the “CLAT”) and the Bennett L. Tollefson Charitable Lead Unitrust (the “CLUT”) entered into a certain voting agreement dated February 20, 2002, which voting agreement was amended on March 1, 2002 and further amended by Amendment No. 2 on January 27, 2003, Amendment No. 3 on March 12, 2003 and Amendment No. 4 on February 24, 2004 (the “Voting Agreement”);
WHEREAS, the CLAT and the CLUT, with the approval of, and waivers granted by, Mariner pursuant to the Voting Agreement transferred all of their respective shares of NYMAGIC, INC. (the “Corporation”) so that they are no longer subject to the Voting Agreement;
WHEREAS, the parties do not deem it necessary to include the Blackman Co-Trust as a party to this Agreement;
WHEREAS, notwithstanding that the CLAT and the CLUT are no longer subject to the Voting Agreement and that the parties no longer deem it necessary to include the Blackman Co-Trust as a party to this Agreement, the Participating Shareholders continue to believe that it is advisable and in the best interests of the Corporation and the shareholders thereof to have a voting 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 of the Corporation; and,
WHEREAS the parties hereto desire to amend and restate the Voting Agreement as provided for herein.
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)   Mark W. Blackman;
 
  (ii)   Lionshead Investments; and
 
  (iii)   The Louise Blackman Trustee as sole trustee of the Louise B. Tollefson 2000 Florida Intangible Tax Trust dated December 12, 2000 and the Louise B. Blackman Tollefson Family Foundation dated March 24, 1998 (such trusts being collectively, the “Louise Blackman 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.
(C)   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 Mark W. Blackman and Lionshead Investments is the record holder and beneficial owner and the Louise Blackman 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.
(D)   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.
ARTICLE II. SHARES SUBJECT TO THIS AGREEMENT:
               The following are shares of common stock of the Corporation are subject to the terms of this Agreement (collectively, the “Voting Shares”):
(A)   225,000 Shares of NYMAGIC, INC. for which Mark W. Blackman has sole voting power;
(B)   225,000 Shares of NYMAGIC, INC. for which Lionshead Investments has sole voting power; and

2

 

(C)   861,409 Shares of NYMAGIC, INC. held by the Florida Intangible Tax Trust and 38,591 shares held by the Louise B. Blackman Tollefson Family Foundation (the “Louise Blackman 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)   Notices. 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.
 
(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.

3

 

ARTICLE IV. NOMINATION OF DIRECTORS:
(A)   The Participating Shareholders and Mariner acknowledge the benefits of a Board nominated with the knowledge, experience and talents of both the Participating Shareholders and Mariner.
 
(B)   Mariner shall be entitled to nominate four (4) candidates for election to the Board; Robert G. Simses shall be entitled to nominate two (2) candidates for election to the Board, including himself; Mark W. Blackman shall be entitled to nominate one (1) candidate for election to the Board and Lionshead Investments shall be entitled to nominate one (1) candidate for election to the Board, provided that one of the candidates nominated to the Board by Robert G. Simses and each of the candidates nominated to the Board by Mark W. Blackman and Lionshead Investments 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 eleven 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 Robert G. Simses, Mark W. Blackman, or Lionshead Investments 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.
 
(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.
 
(D)   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).
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 1,350,000 shares of the Corporation from the Participating Shareholders in the amounts set forth below opposite each

4

 

    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)   Mark W. Blackman -225,000 Shares;
 
  (2)   Lionshead Investments — 225,000 Shares;
 
  (3)   the Louise Blackman Trustee — 900,000 Louise Blackman Shares, provided that the Louise Blackman Trustee shall have the sole power to determine the number of shares to be provided by either of the Louise Blackman Trusts.
(B)   The Option Price shall be as follows:
                                         
From
   September 12, 2005   to   November 14, 2005   $ 22.50          
From
   November 15, 2005   to   February 14, 2006   $ 22.75          
From
   February 15, 2006   to   May 14, 2006   $ 23.00          
From
   May 15, 2006   to   August 14, 2006   $ 23.25          
From
   August 15, 2006   to   November 14, 2006   $ 23.50          
From
   November 15, 2006   to   February 14, 2007   $ 23.75       —  
From
   February 15, 2007   to   May 14, 2007   $ 24.00          
From
   May 15, 2007   to   August 14, 2007   $ 24.25       —  
From
   August 15, 2007   to   November 14, 2007   $ 24.50          
From
   November 15, 2007   to   February 14, 2008   $ 24.75       —  
From
   February 15, 2008   to   May 14, 2008   $ 25.00          
From
   May 15, 2008   to   August 14, 2008   $ 25.25          
From
   August 15, 2008   to   November 14, 2008   $ 25.50          
From
   November 15, 2008   to   February 14, 2009   $ 25.75          
From
   February 15, 2009   to   May 14, 2009   $ 26.00          
From
   May 15, 2009   to   August 14, 2009   $ 26.25          
From
   August 15, 2009   to   November 14, 2009   $ 26.50          
From
   November 15, 2009   to   February 14, 2010   $ 26.75          
From
   February 15, 2010   to   May 14, 2010   $ 27.00          
From
   May 15, 2010   to   August 14, 2010   $ 27.25          
From
   August 15, 2010   to   November 14, 2010   $ 27.50          
From
   November 15, 2010   to   December 31, 2010   $ 27.75          
Less the cumulative amount of dividends paid by the Corporation in respect of each share of its common stock from January 31, 2003 through to the date Mariner purchases such Option Shares.
(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.
 
(F)   Notwithstanding ARTICLE X (E) 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 William J. Michaelcheck,

5

 

    William D. Shaw, Jr., George R. Trumbull and A. George Kallop 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; provided, however, that any assignment of the Option by any such assignee to a spouse or a child, or to a trust for the benefit of a spouse or a child, shall not require the approval of any Participating Shareholders. It is a condition to a valid assignment under this clause (F) that the assignee acknowledges 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)   December 31, 2010;
 
  (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 as an advisor to the Corporation; or
 
  (iv)   upon written notice of such termination to Mariner from all of the Participating Shareholders, provided, that the Purchase Option Agreement Clause set forth in Article VI above shall continue in full force and effect until the close of business on December 31, 2010.
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 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 Participating Shareholders of that Transfer. All Transferred Shares 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 that certain Amended and Restated Voting Agreement dated October 12, 2005, 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)   Other than as permitted by clauses (A), no Participating Shareholder shall have the right to Transfer or sell the Voting Shares.

6

 

ARTICLE X. 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.
 
(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 the Participating Shareholders, at their respective addresses as set forth on the signature page of this Agreement and Mariner, c/o Mariner Partners, Inc., 500 Mamaroneck Avenue, Harrison, NY 10528.
 
(E)   Binding Effect and Assignment. This Agreement and all of the provisions 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.
 
(F)   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.
 
(G)   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.
 
(H)   Expenses. All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such costs and expenses.
 
(I)   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.

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MARINER PARTNERS, INC.   PARTICIPATING SHAREHOLDERS    
 
            
By:
  /s/ William J. Michaelcheck   /s/ Mark W. Blackman    
 
           
 
  Name: William J. Michaelcheck   Mark W. Blackman    
 
  Title: Chairman   Address:    
 
      80 Deepwood Road    
 
      Darien, CT 06820    
             
    LIONSHEAD INVESTMENTS LLC    
 
            
 
  By:   /s/ John N. Blackman, Jr.    
 
           
 
      John N. Blackman, Jr.    
 
      Member    
 
            
 
  By:   /s/ Kathleen Blackman    
 
           
 
      Kathleen Blackman
Member		    
 
            
    Address:    
    41 Wee Burn Lane    
    Darien, CT 06820    
 
            
    /s/ Robert G. Simses    
         
    Robert G. Simses    
    (as trustee of the Louise Blackman Trusts)    
    Address:    
    Simses & Associates, P.A.    
    400 Royal Palm Way, Suite 304    
    Palm Beach, FL 33480    

8

EX-99.2 3 j1724701exv99w2.htm EX-99.2 EX-99.2
 

Exhibit 99.2
JOINT FILING AGREEMENT AND POWER OF ATTORNEY
     Each of the undersigned parties does hereby agree to jointly file with the Securities and Exchange Commission the Schedule 13D amendment filed herewith (and any amendments thereto) relating to the common stock of NYMAGIC, INC., and hereby authorizes and appoints each of William Jeter Michaelcheck and Charles Raymond Howe II as attorney-in-fact and agent of the undersigned, with full power of substitution, to execute such Schedule 13D amendment and any amendments thereto.
October 12, 2005
         
  MARINER PARTNERS, INC.
 		  
  By:   /s/ William J. Michaelcheck    
    William J. Michaelcheck,   
    Chairman and Chief Executive Officer   
 
     
  /s/ William J. Michaelcheck    
  William J. Michaelcheck   
     
 
     
  /s/ Mark W. Blackman    
  Mark W. Blackman   
     
 
  LIONSHEAD INVESTMENTS LLC
 		  
  By:   /s/ John N. Blackman, Jr.    
    John N. Blackman, Jr., Member   
       
 
  BLACKMAN CHARITABLE REMAINDER TRUST
 		  
  By:   /s/ John N. Blackman, Jr.    
    John N. Blackman, Jr., Trustee   
       
 
  LOUISE B. TOLLEFSON 2000 FLORIDA
INTANGIBLE TAX TRUST DATED 12/12/00
 		  
  By:   /s/ Robert G. Simses    
    Robert G. Simses, Trustee   
       
 
  LOUISE B. BLACKMAN TOLLEFSON
FAMILY FOUNDATION DATED 3/24/98
 		  
  By:   /s/ Robert G. Simses    
    Robert G. Simses, Trustee   
       

 

 

         
         
  LOUISE B. TOLLEFSON CHARITABLE
LEAD ANNUITY TRUST DATED 3/30/00
 		  
  By:   /s/ Robert G. Simses    
    Robert G. Simses, Trustee   
       
 
  BENNETT H. TOLLEFSON CHARITABLE
LEAD UNITRUST DATED 3/30/00
 		  
  By:   /s/ Robert G. Simses    
    Robert G. Simses, Trustee   
       
 
     
  /s/ A. George Kallop    
  A. George Kallop   
     
 
     
  /s/ George R. Trumbull, III    
  George R. Trumbull, III   
     
 

 

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