0001116679-05-000284.txt : 20120703
0001116679-05-000284.hdr.sgml : 20120703
20050201101000
ACCESSION NUMBER: 0001116679-05-000284
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 1
FILED AS OF DATE: 20050201
DATE AS OF CHANGE: 20050201
GROUP MEMBERS: A. GEORGE KALLOP
GROUP MEMBERS: BENNETT H. TOLLEFSON CHARITABLE LEAD UNITRUST
GROUP MEMBERS: BLACKMAN CHARITABLE REMAINDER TRUST
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: MARINER PARTNERS, INC.
GROUP MEMBERS: MARK W. BLACKMAN
GROUP MEMBERS: WILLIAM D. SHAW, JR.
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: 05564184
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
nym13da5.txt
AMENDMENT NO. 5
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 5)
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.
780 Third Avenue
16th Floor
New York, NY 10017
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)
January 7, 2005
--------------------------------------------------------------------------------
(Date of Events Which Require 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 /X/ (with respect to Mark W. Blackman and John N. Blackman,
Jr.)
(Continued on following pages)
(Page 1 of 23 Pages)
Page 2
CUSIP NO.: 629484106 SCHEDULE 13D
1 NAME OF REPORTING PERSONS
Mariner Partners, Inc.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO [Not yet determined]
--------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 2,365,000
OWNED BY -------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
-------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,800,000 shares subject to option
-------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,365,000 based on shared voting power
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.2%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
--------------------------------------------------------------------------------
Page 3
CUSIP NO.: 629484106 SCHEDULE 13D
1 NAME OF REPORTING PERSONS
Mark W. Blackman
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
--------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 2,365,000
OWNED BY -------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 465,000
-------------------------------------------------
10 SHARED DISPOSITIVE POWER
450,000
-------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,365,000 based on shared voting power
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|X|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.2%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
Page 4
CUSIP NO.: 629484106 SCHEDULE 13D
1 NAME OF REPORTING PERSONS
Lionshead Investments LLC
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
--------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Connecticut
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 2,365,000
OWNED BY -------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
-------------------------------------------------
10 SHARED DISPOSITIVE POWER
475,000
-------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,365,000 based on shared voting power
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.2%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
--------------------------------------------------------------------------------
Page 5
CUSIP NO.: 629484106 SCHEDULE 13D
1 NAME OF REPORTING PERSONS
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 (a) |_|
(b) |X|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
--------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Connecticut
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 2,365,000
OWNED BY -------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
-------------------------------------------------
10 SHARED DISPOSITIVE POWER
75,000
-------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,365,000 based on shared voting power
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.2%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
--------------------------------------------------------------------------------
Page 6
CUSIP NO.: 629484106 SCHEDULE 13D
1 NAME OF REPORTING PERSONS
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 (a) |_|
(b) |X|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
--------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Florida
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 2,365,000
OWNED BY -------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 1,039
-------------------------------------------------
10 SHARED DISPOSITIVE POWER
861,409
-------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,365,000 based on shared voting power
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.2%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
--------------------------------------------------------------------------------
Page 7
CUSIP NO.: 629484106 SCHEDULE 13D
1 NAME OF REPORTING PERSONS
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 (a) |_|
(b) |X|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
--------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Forida
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 2,365,000
OWNED BY -------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
-------------------------------------------------
10 SHARED DISPOSITIVE POWER
38,591
-------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,365,000 based on shared voting power
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.2%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
--------------------------------------------------------------------------------
Page 8
CUSIP NO.: 629484106 SCHEDULE 13D
1 NAME OF REPORTING PERSONS
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 (a) |_|
(b) |X|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
--------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Florida
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 2,365,000
OWNED BY -------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
-------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
-------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,365,000 based on shared voting power
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.2%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
--------------------------------------------------------------------------------
Page 9
CUSIP NO.: 629484106 SCHEDULE 13D
1 NAME OF REPORTING PERSONS
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 (a) |_|
(b) |X|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable
--------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Florida
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 2,365,000
OWNED BY -------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
-------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
-------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,365,000 based on shared voting power
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.2%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
--------------------------------------------------------------------------------
Page 10
CUSIP NO.: 629484106 SCHEDULE 13D
1 NAME OF REPORTING PERSONS
William J. Michaelcheck
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO [Not yet determined]
--------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 2,365,000
OWNED BY -------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
-------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,800,000 shares subject to option
-------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,365,000 based on shared voting power
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.2%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
Page 11
CUSIP NO.: 629484106 SCHEDULE 13D
1 NAME OF REPORTING PERSONS
A. George Kallop
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO [Not yet determined]
--------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY -------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
-------------------------------------------------
10 SHARED DISPOSITIVE POWER
315,000 shares subject to option
-------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
315,000 based on shared voting power
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.6%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
Page 12
CUSIP NO.: 629484106 SCHEDULE 13D
1 NAME OF REPORTING PERSONS
William D. Shaw, Jr.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO [Not yet determined]
--------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) |_|
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
-------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY -------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 0
-------------------------------------------------
10 SHARED DISPOSITIVE POWER
315,000 shares subject to option
-------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
315,000 based on shared voting power
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.6%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
Page 13
This Amendment No. 5 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. 5 to the Schedule 13D amends and supplements:
o the Schedule 13D, as filed with the Securities and Exchange
Commission (the "SEC") on March 4, 2002, as amended by
o Amendment No. 1, as filed with the SEC on April 10, 2003, as amended
by
o Amendment No. 2, as filed with the SEC on October 22, 2003, as
amended by
o Amendment No. 3, as filed with the SEC on January 8, 2004, as
amended by
o Amendment No. 4, as filed with the SEC on March 25, 2004.
This statement on Schedule 13D relates to shares of common stock, $1.00
par value, of NYMAGIC, INC., a New York corporation ("NYMAGIC") whose principal
executive office is located at 919 Third Avenue, 10th Floor, New York, NY 10022.
Item 4: Purpose of Transaction.
As described in Item 6, on January 7, 2005, NYMAGIC entered into
a Stock Purchase Agreement (the "Stock Purchase Agreement")
pursuant to which NYMAGIC purchased from certain of its
shareholders, including certain of the Reporting Persons, a total
of 1,092,735 shares of NYMAGIC's common stock at $24.80 per
share. The number of shares sold by each selling shareholder
pursuant to the Stock Purchase Agreement is set forth in Item 5
below.
As of January 8, 2005, as further described in Item 6, Mariner
had the right to vote the Voting Shares (as defined in Item 6)
representing approximately 27.2% of the voting stock of NYMAGIC,
with the approval of two out of three of the Participating
Shareholders (as defined in Item 6) subject to certain provisions
of the voting agreement further described in Item 6. In this
manner, the parties to the 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.
Prior to the 2004 Amendment (as defined in Item 6 below), (i)
Mariner was entitled to nominate four candidates for election to
the Board of Directors of NYMAGIC (the "Board"); (ii) each
Participating Shareholder was entitled to nominate two candidates
to for election to the Board; and (iii) the Chief Executive
Officer of NYMAGIC was entitled to nominate two candidates for
election to the Board, for a total of twelve directors. The
directors designated by Mariner and elected on May 22, 2002 and
May 29, 2003 were William J. Michaelcheck,
Page 14
William D. Shaw, Jr., George R. Trumbull, III and A. George
Kallop. The directors designated by the Participating
Shareholders and elected on May 22, 2002 and May 29, 2003 were
Mark W. Blackman, John N. Blackman, Jr., Robert G. Simses, John
R. Anderson, Glenn J. Angiolillo and Glenn R. Yanoff. The
directors designated by the Chief Executive Officer and
appointed on February 3, 2003 and March 13, 2003, respectively,
were David W. Young and John T. Baily and these directors were
also elected on May 29, 2003. The Board elected on May 22, 2002
appointed the following persons as officers of NYMAGIC: George
R. Trumbull, III as Chairman, William D. Shaw, Jr. as Vice
Chairman and A. George Kallop as Executive Vice President. Mr.
Trumbull was also appointed the Chief Executive Officer on June
10, 2002. These officers were reappointed on May 29, 2003. Mr.
Kallop was also appointed Chief Operating Officer in February
2004. The Board also approved an investment management agreement
whereby Mariner was engaged as sole investment adviser to manage
the portfolio of NYMAGIC and its insurance company subsidiaries.
Following the 2004 Amendment, (i) Mariner is entitled to nominate
three candidates for election to the Board; (ii) the Tollefson
Trustee is entitled to nominate one candidate for election to the
Board, including himself; (iii) Mark W. Blackman is entitled to
nominate one candidate for election to the Board and John N.
Blackman, Jr. is entitled to nominate one candidate for election
to the Board, provided that the candidates nominated to the Board
by Mark W. Blackman and John N. Blackman, Jr. shall qualify as
"independent directors" in accordance with the rules of the New
York Stock Exchange and all other applicable laws and regulations
("Independent Directors"); and (iv) the Chief Executive Officer
of NYMAGIC is entitled to nominate three candidates for election
to the Board, all of whom shall be Independent Directors, for a
total of nine directors.
The current directors of NYMAGIC who were nominated by Mariner
are William J. Michaelcheck, William D. Shaw, Jr. and George R.
Trumbull, III. The current directors of NYMAGIC who were
nominated by the Participating Shareholders are Robert G.
Simses, John R. Anderson and Glenn J. Angiolillo. The current
directors of NYMAGIC who were nominated by the Chief Executive
Officer are David E. Hoffman, David W. Young and John T. Baily.
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. George R.
Trumbull, III was appointed Chairman of NYMAGIC on May 22, 2002
and was appointed Chief Executive Officer of NYMAGIC on June 10,
2002. Pursuant to the 2004 Amendment, if any of the Tollefson
Trustee, Mark W. Blackman and John N. Blackman, Jr. does not
nominate a candidate for election to the Board that such person
is authorized to nominate, then in addition to its other rights,
Mariner, instead of such person, may nominate a number of
candidates equal to the number not nominated by such person.
Page 15
The parties to the 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.
Pursuant to the voting agreement, the Participating Shareholders
granted Mariner the option to purchase an aggregate of up to
1,800,000 of their shares of NYMAGIC. 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. Each of Mr. Shaw and Mr. Kallop have
contractual relationships with Mariner, with Mr. Kallop's
contract relating to consulting services and Mr. Shaw's contract
relating to investment services.
On December 17, 2003 and December 23, 2003, pursuant to an
effective shelf registration, Registration No. 333-106547 (the
"Registration Statement"), Mark W. Blackman, Lionshead
Investments LLC, Louise B. Tollefson 2000 Florida Intangible
Trust, Louise B. Blackman Tollefson Family Foundation, Louise B.
Tollefson Charitable Lead Annuity Trust and Bennett H. Tollefson
Charitable Lead Unitrust sold an aggregate of 2,150,000 of shares
of NYMAGIC. The shares that were sold pursuant to the
Registration Statement are no longer subject to the voting
agreement.
The Registration Statement also covers the 1,800,000 option
shares granted to Mariner pursuant to the voting agreement,
including the portions being held for William D. Shaw, Jr. and A.
George Kallop. These reporting persons have the flexibility to
sell the registered shares from time to time at market prices
prevailing at the time of sale, at prices related to market
prices, at a fixed price or prices subject to change or at
negotiated prices, by a variety of methods including the
following:
o on the New York Stock Exchange, in the over-the-counter
market, or on another national securities exchange (any of
which may include crosses and block transactions);
o in privately negotiated transactions;
o through broker-dealers, who may act as agents or
principals, including through ordinary brokerage
transactions and transactions in which a broker solicits
purchasers;
Page 16
o in a block trade in which a broker-dealer will attempt to
sell a block of shares of common stock as agent but may
position and resell a portion of the block as principal to
facilitate the transaction;
o through one or more underwriters, dealers and agents, on a
firm commitment or best efforts basis, who may receive
compensation in the form of underwriting discounts,
concessions or commissions from a seller and/or the
purchasers of the shares for whom they may act as agent;
o through exchange distributions in accordance with the
rules of the applicable exchange;
o directly to one or more purchasers;
o through agents;
o through option transactions, forward contracts, equity
swaps or other derivative transactions relating to the
securities;
o through short sales of the securities;
o in any combination of the above; and
o in any other lawful manner.
Item 5: Interest in Securities of the Issuer.
As described in Item 6, on January 7, 2005, NYMAGIC entered into
a Stock Purchase Agreement pursuant to which NYMAGIC purchased
from certain of its shareholders, including certain of the
Reporting Persons, a total of 1,092,735 shares of NYMAGIC's
common stock at $24.80 per share. Pursuant to the Stock Purchase
Agreement, NYMAGIC purchased from each selling shareholder
thereunder the number of shares set forth below for the aggregate
purchase price set forth below:
---------------------------- ----------------------- --------------------------
Aggregate Number of Aggregate Purchase Price
Name Common Stock of Common Stock
---------------------------- ----------------------- --------------------------
Mark W. Blackman 54,530 shares $1,352,344.00
---------------------------- ----------------------- --------------------------
Deborah Blackman 50,000 shares $1,240,000.00
---------------------------- ----------------------- --------------------------
Trust for the Benefit of 55,000 shares $1,364,000.00
Alexandra Blackman
---------------------------- ----------------------- --------------------------
Trust for the Benefit of 55,000 shares $1,364,000.00
Ian Blackman
---------------------------- ----------------------- --------------------------
Lionshead Investments, LLC 495,030 shares $12,276,744.00
---------------------------- ----------------------- --------------------------
Page 17
---------------------------- ----------------------- --------------------------
Blackman Charitable 25,000 shares $620,000.00
Remainder Trust
---------------------------- ----------------------- --------------------------
Trust for the Benefit of 25,158 shares $623,918.40
Laura Blackman
---------------------------- ----------------------- --------------------------
Genna Blackman 33,832 shares $839,033.60
---------------------------- ----------------------- --------------------------
Christopher Blackman 33,832 shares $839,033.60
---------------------------- ----------------------- --------------------------
Louise B. Tollefson 133,135 shares $3,301,748.00
Charitable Lead Annuity
Trust dated 3/30/00
---------------------------- ----------------------- --------------------------
Bennett H. Tollefson 125,374 shares $3,109,275.20
Charitable Lead Unitrust
dated 3/30/00
---------------------------- ----------------------- --------------------------
Louise B. Blackman 6,844 shares $169,731.20
Tollefson Family
Foundation Dated 3/24/98
---------------------------- ----------------------- --------------------------
Following the sale of shares pursuant to the Stock Purchase
Agreement, as of January 8, 2005, Mariner and the Participating
Shareholders shared voting power pursuant to the voting agreement
with respect to 2,365,000 shares of common stock of NYMAGIC,
representing approximately 27.2% 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 they retain shares
necessary for Mariner to exercise its option and provided further
that the transferee agrees to be bound by the voting agreement
except that each Participating Shareholder may transfer an
aggregate of 250,000 shares that will not be subject to the
voting agreement. Pursuant to the voting agreement, Mariner
received an option to acquire 1,800,000 shares of common stock
from the Participating Shareholders, representing approximately
20.7% of the outstanding shares of common stock of NYMAGIC as of
January 8, 2005. The 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. Option transferees must agree to be bound to the
terms of the voting agreement. 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. Each of Mr. Shaw and Mr. Kallop have
contractual relationships with Mariner, with Mr. Kallop's
contract relating to consulting services and Mr. Shaw's contract
relating to investment services.
Page 18
In addition, on January 6, 2005, by mutual agreement of John N.
Blackman, Jr. and NYMAGIC, an option held by Mr. Blackman to
purchase 10,000 shares of NYMAGIC's common stock was cancelled
and Mr. Blackman received $88,500 as consideration for the
cancellation. The exercise price of the cancelled option was
$14.47 per share and the expiration date was September 18, 2012.
The following chart sets forth beneficial ownership information
with respect to each of the reporting persons as of January 8,
2005:
------------------------------ ----------------------------------------------------------------------------------------------------
Number of Shares Beneficially Owned by Each Reporting Person
------------------------------ ------------ ------------ ------------ -------------- -------------- -------------- ----------------
Name of Reporting Person Sole Voting Shared Sole Shared Aggregate No. Percentage of No. of Shares
Power Voting Dispositive Dispositive of Shares Shares Held Subject
Power Power Power Beneficially Beneficially to Mariner
Owned (1) Owned (1) Option
------------------------------ ------------ ------------ ------------ -------------- -------------- -------------- ----------------
Mariner Partners, Inc. 0 2,365,000 0 1,800,000 1,800,000 0 0
------------------------------ ------------ ------------ ------------ -------------- -------------- -------------- ----------------
William J. Michaelcheck 0 2,365,000 0 1,800,000 1,800,000 0 0
------------------------------ ------------ ------------ ------------ -------------- -------------- -------------- ----------------
Mark W. Blackman 0 2,365,000 475,000 450,000 925,000 10.6% 450,000
(2) (2) (2)
------------------------------ ------------ ------------ ------------ -------------- -------------- -------------- ----------------
Lionshead Investments LLC 0 2,365,000 0 475,000 475,000 5.5% 450,000
(3)
------------------------------ ------------ ------------ ------------ -------------- -------------- -------------- ----------------
Blackman Charitable 0 2,365,000 0 75,000 75,000 0.9% 0
Remainder Trust
------------------------------ ------------ ------------ ------------ -------------- -------------- -------------- ----------------
Louise B. Tollefson 2000 0 2,365,000 1,039 861,409 862,448 9.9% 861,409
Florida Intangible Trust (4) (5) (6)
------------------------------ ------------ ------------ ------------ -------------- -------------- -------------- ----------------
Louise B. Blackman Tollefson 0 2,365,000 0 38,591 38,591 0.4% 38,591
Family Foundation (4) (5) (6)
------------------------------ ------------ ------------ ------------ -------------- -------------- -------------- ----------------
Louise B. Tollefson 0 2,365,000 0 0 0 0 (6)
Charitable Lead Annuity Trust (4) (5)
------------------------------ ------------ ------------ ------------ -------------- -------------- -------------- ----------------
Bennett H. Tollefson 0 2,365,000 0 0 0 0 (6)
Charitable Lead Unitrust (4) (5)
------------------------------ ------------ ------------ ------------ -------------- -------------- -------------- ----------------
A. George Kallop 0 0 0 315,000 315,000 0 0
(7)
------------------------------ ------------ ------------ ------------ -------------- -------------- -------------- ----------------
William D. Shaw, Jr. 0 0 0 315,000 315,000 0 0
(7)
------------------------------ ------------ ------------ ------------ -------------- -------------- -------------- ----------------
(1) These percentages are calculated excluding shared voting
power. These percentages have been calculated without giving effect to
the Mariner options. If the Mariner options were exercised, Mariner's
and William J. Michaelcheck's percentage would be 20.7%; Mark W.
Blackman's percentage would be 5.5%, Lionshead Investments LLC's
percentage would be 0%, A. George Kallop's percentage would be 3.6% and
William D. Shaw, Jr.'s percentage would be 3.6%. The percentages for
each Tollefson Trust would depend on how the options are allocated among
the trusts. The percentage of each of the Tollefson Trusts could be
reduced to 0% if the maximum possible options were allocated to it. See
footnote 6.
(2) Includes 10,000 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 described in
NYMAGIC's Current Report on Form 8-K dated January 31, 2003.
Page 19
(4) Assumes that the Tollefson Trustee, who has the sole power to
determine the number of shares to be provided by any one or more of the
Tollefson Trusts upon exercise of the option, allocates the maximum
number of shares to be provided in the aggregate by the Tollefson Trusts
to the Tollefson Trusts other than this Reporting Person.
(5) Assumes that the Tollefson Trustee, who has the sole power to
determine the number of shares to be provided by any one or more of the
Tollefson Trusts upon exercise of the option, allocates the maximum
number of shares to be provided in the aggregate by the Tollefson Trusts
to this Reporting Person.
(6) An aggregate of 900,000 shares held by the Tollefson Trusts
are subject to the option; the Tollefson Trustee has the sole power to
determine the number of shares to be provided by any or all of the
Tollefson Trusts upon exercise of the option.
(7) Beneficial ownership of these shares is being reported by A.
George Kallop and William D. Shaw, Jr. because of a possible
interpretation that they beneficially own the shares underlying the
portion of the options assigned to each of them by Mariner.
William J. Michaelcheck and Charles R. Howe II do not
individually own any shares of NYMAGIC. John N. Blackman, Jr. and
Kathleen Blackman individually do not own any shares of NYMAGIC.
In addition to the Tollefson trust interests set forth above,
Louise B. Tollefson owns 5,262 shares of NYMAGIC for which she
has sole voting and dispositive power. Louise B. Tollefson may be
deemed to beneficially own an additional 1,402 shares owned by
her spouse Bennett H. Tollefson, and may be deemed to have power
to vote such shares. Louise B. Tollefson disclaims beneficial
ownership of such 1,402 shares. In addition, she is a beneficiary
of the Louise B. Tollefson and Bennett H. Tollefson Charitable
Remainder Unitrust dated 3/24/98, which owns 84,819 shares of
NYMAGIC but she does not have voting or dispositive power over
such shares.
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.
On January 7, 2005, NYMAGIC entered into a Stock Purchase
Agreement pursuant to which NYMAGIC purchased from certain of its
shareholders, including certain of the Reporting Persons, a total
of 1,092,735 shares of NYMAGIC's common stock at $24.80 per
share. The selling shareholders were (i) Mark W. Blackman, a son
of NYMAGIC's founder who is currently NYMAGIC's Chief
Underwriting Officer, (ii) his wife Deborah Blackman, (iii) the
Trust for the Benefit of Alexandra Blackman, which is a trust
established for the benefit of the daughter of Mark W. Blackman
and Deborah Blackman, (iv) the Trust for the Benefit of Ian
Blackman, which is a trust established for the benefit of the son
of Mark W. Blackman and Deborah Blackman, (v) Lionshead
Investments, LLC, a company controlled by John N. Blackman, Jr.,
also a son of NYMAGIC's founder, (vi) Genna Blackman, a daughter
of John N. Blackman, Jr., (vii) Christopher Blackman, a son of
John N. Blackman, Jr., (viii) the Trust for the Benefit of Laura
Blackman, which is a trust established for the benefit of the
daughter of John N. Blackman, Jr., (ix) the Blackman Charitable
Remainder
Page 20
Trust, which is a charitable remainder trust established by the
Blackman family, (x) the Louise B. Tollefson Charitable Lead
Annuity Trust dated 3/30/00, which is a trust established by
Louise B. Tollefson, the former wife of NYMAGIC's founder, (xi)
the Bennett H. Tollefson Charitable Lead Unitrust dated 3/30/00,
which is a trust established by Louise B. Tollefson, the former
wife of NYMAGIC's founder, and (xii) the Louise B. Blackman
Tollefson Family Foundation Dated 3/24/98, which is a trust
established by Louise B. Tollefson, the former wife of NYMAGIC's
founder. Robert G. Simses, a director of NYMAGIC, is a trustee
of the trusts identified in (x), (xi) and (xii) above. Pursuant
to a Waiver Agreement (the "Waiver") dated as of January 6,
2005, Mariner consented to the sale of shares to NYMAGIC under
the Stock Purchase Agreement and irrevocably released the shares
sold from the provisions of the voting agreement.
The summary of the Stock Purchase Agreement and the Waiver
contained in this Schedule 13D is qualified in its entirety by
reference to the full text of the Stock Purchase Agreement and
the Waiver, which are attached hereto as Exhibits 99.1 and 99.2,
respectively, and are incorporated herein by reference.
Mariner entered into a voting agreement relating to the stock of
NYMAGIC as of February 20, 2002 (subsequently amended as of March
1, 2002, January 27, 2003, March 12, 2003, and February 24, 2004
(the "2004 Amendment")) with (i) MARK W. BLACKMAN; BLACKMAN
INVESTMENTS LLC, now LIONSHEAD INVESTMENTS LLC ("Lionshead
Investments"); JOHN N. BLACKMAN, JR. (the "Blackman Trustee") as
trustee of the Blackman Charitable Remainder Trust (the "Blackman
Co-Trust"); and ROBERT G. SIMSES (the "Tollefson Trustee") as
trustee of the Louise B. Tollefson 2000 Florida Intangible Tax
Trust dated 12/12/00, as trustee of the Louise B. Blackman
Tollefson Family Foundation dated 3/24/98, as co-trustee of the
Louise B. Tollefson Charitable Lead Annuity Trust dated 3/30/00,
and as co-trustee of the Bennett H. Tollefson Charitable Lead
Unitrust dated 3/30/00 (the "Participating Shareholders"); (ii)
KATHLEEN BLACKMAN as co-trustee with the Blackman Trustee of the
Blackman Charitable Remainder Trust; and (iii) FIRST UNION
NATIONAL BANK (the "Bank Trustee") as co-trustee with the
Tollefson Trustee of the Louise B. Tollefson Charitable Lead
Annuity Trust dated 3/30/00, and as co-trustee with the Tollefson
Trustee of the Bennett H. Tollefson Charitable Lead Unitrust (the
"Tollefson Co-Trusts"). The Bank Trustee is currently Wachovia
Bank, N.A. as successor to First Union National Bank.
The following shares are currently subject to the voting
agreement (the "VotingShares"):
(i) the 915,000 Shares of NYMAGIC held by Mark W.
Blackman;
(ii) the 475,000 Shares of NYMAGIC held by Lionshead
Investments;
Page 21
(iii) the 75,000 Shares of NYMAGIC held by the Blackman
Charitable Remainder Trust; and
(iv) the 861,409 Shares of NYMAGIC held by the Louise B.
Tollefson 2000 Florida Intangible Tax Trust and the
38,591 shares held by the Louise B. Blackman
Tollefson Family Foundation (hereinafter the
"Tollefson Shares").
For the purposes of the voting agreement there are three
"Participating Shareholders":
(i) Mark W. Blackman;
(ii) Lionshead Investments and the Blackman Trustee as
co-trustee of the Blackman Charitable Remainder
Trust dated April 1, 2001 (with Lionshead
Investments and the Blackman Trustee constituting
one Participating Shareholder for all purposes
under the voting agreement); and
(iii) The Tollefson Trustee as sole trustee of the Louise
B. Tollefson 2000 Florida Intangible Tax Trust
dated December 12, 2000; as sole trustee of the
Louise B. Blackman Tollefson Family Foundation
dated March 24, 1998; as co-trustee of the Louise
B. Tollefson Charitable Lead Annuity Trust dated
March 30, 2000; and as co-trustee of the Bennett H.
Tollefson Charitable Lead Unitrust dated March 30,
2000 (such trusts being collectively, the
"Tollefson Trusts").
Pursuant to the 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 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.
Page 22
Prior to the 2004 Amendment, (i) Mariner was entitled to nominate
four candidates for election to the Board; (ii) each
Participating Shareholder was entitled to nominate two candidates
to for election to the Board; and (iii) the Chief Executive
Officer of NYMAGIC was entitled to nominate two candidates for
election to the Board.
Following the 2004 Amendment, (i) Mariner is entitled to nominate
three candidates for election to the Board; (ii) the Tollefson
Trustee is entitled to nominate one candidate for election to the
Board, including himself; (iii) Mark W. Blackman is entitled to
nominate one candidate for election to the Board and John N.
Blackman, Jr. is entitled to nominate one candidate for election
to the Board, provided that the candidates nominated to the Board
by Mark W. Blackman and John N. Blackman, Jr. shall qualify as
Independent Directors; and (iv) the Chief Executive Officer of
NYMAGIC is entitled to nominate three candidates for election to
the Board, all of whom shall be Independent Directors, for a
total of nine directors.
The current directors of NYMAGIC who were nominated by Mariner
are William J. Michaelcheck, William D. Shaw, Jr. and George R.
Trumbull, III. The current directors of NYMAGIC who were
nominated by the Participating Shareholders are Robert G. Simses,
John R. Anderson and Glenn J. Angiolillo. The current directors
of NYMAGIC who were nominated by the Chief Executive Officer are
David E. Hoffman, David W. Young and John T. Baily.
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. George R.
Trumbull, III was appointed Chairman of NYMAGIC on May 22, 2002
and was appointed Chief Executive Officer of NYMAGIC on June 10,
2002. Pursuant to the 2004 Amendment, if any of the Tollefson
Trustee, Mark W. Blackman and John N. Blackman, Jr. does not
nominate a candidate for election to the Board that such person
is authorized to nominate, then in addition to its other rights,
Mariner, instead of such person, may nominate a number of
candidates equal to the number not nominated by such person.
The voting agreement also gives Mariner the right to purchase at
any time and from time to time up to 1,800,000 shares of NYMAGIC
from the Participating Shareholders in the amounts set forth
below opposite each such Participating Shareholder's name:
Page 23
(i) Mark W. Blackman - 450,000 shares;
(ii) Lionshead Investments - 450,000 shares;
(iii) the Tollefson Trustee - 900,000 shares, provided
that the Tollefson Trustee shall have the sole
power to determine the number of shares to be
provided by any one of the Tollefson Trusts.
(iv) The exercise price for the options is as follows:
Time Period Price
------------------------------------------- -------------
February 15-May 14, 2002: $19.00 per share
May 15-August 14, 2002: $19.25 per share
August 15-November 14, 2002: $19.50 per share
November 15, 2002-February 14, 2003: $19.75 per share
February 15-May 14, 2003: $20.00 per share
May 15-August 14, 2003: $20.25 per share
August 15-November 14, 2003: $20.50 per share
November 15, 2003-February 14, 2004: $20.75 per share
February 15-May 14, 2004: $21.00 per share
May 15-August 14, 2004: $21.25 per share
August 15-November 14, 2004: $21.50 per share
November 15, 2004-February 14, 2005: $21.75 per share
February 15-May 14, 2005: $22.00 per share
May 15-August 14, 2005: $22.25 per share
August 15-November 14, 2005: $22.50 per share
November 15, 2005-February 14, 2006: $22.75 per share
February 15-May 14, 2006: $23.00 per share
May 15-August 14, 2006: $23.25 per share
August 15-November 14, 2006: $23.50 per share
November 15, 2006-February 14, 2007: $23.75 per share
February 15-March 17, 2007: $24.00 per share
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
to the date Mariner purchases such option shares.
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. Messrs.
Kallop and Shaw have contractual relationships with Mariner, with
Mr. Kallop's contract relating to consulting services and Mr.
Shaw's contract relating to investment services.
Page 24
The voting agreement terminates upon the earliest to occur of the
following dates (the "Termination Date"):
(i) February 15, 2007;
(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; or
(iv) upon written notice of such termination to Mariner
from all of the Participating Shareholders,
provided, that except where such written notice of
termination is due to gross negligence or willful
misconduct that causes or is reasonably likely to
cause direct, substantial and provable damage to
NYMAGIC, the options shall continue in full force
and effect until the close of business on February
15, 2007.
Mariner's voting rights, board nomination rights and right to
acquire option shares representing in the aggregate ten percent
(10%) or more of the voting power conferred by all of the voting
stock of NYMAGIC at the time outstanding were granted subject to
the New York Superintendent of Insurance either (i) having given
his prior approval thereto pursuant to Section 1506 of the New
York Insurance Law or (ii) having determined pursuant to Section
1501(c) of the New York Insurance Law that no such approval is
required. Such approval was granted by the New York
Superintendent of Insurance on July 31, 2002.
The Participating Shareholders may transfer their Voting Shares;
provided that (i) they at all times retain the number of Voting
Shares necessary to enable Mariner to exercise its options and
(ii) the transferred shares remain subject to the voting
agreement. The Participating Shareholders waived the requirement
that transferred shares remain subject to the voting agreement to
the extent that such shares were sold pursuant to the
Registration Statement on or prior to December 31, 2003. Mariner
also waived this requirement with respect to the shares sold to
NYMAGIC pursuant to the Stock Purchase Agreement. In addition,
each Participating Shareholder is allowed to sell up to 250,000
Voting Shares, which shares would then no longer be subject to
the voting agreement.
The summary of the voting agreement contained in this Schedule
13D is qualified in its entirety by reference to the full text of
the voting agreement and all amendments thereto, which are
attached hereto as Exhibits 99.3, 99.4, 99.5 and 99.6, and are
incorporated herein by reference.
Page 25
Item 7: Material to be Filed as Exhibits.
99.1 Stock Purchase Agreement dated as of January 7, 2005
(filed as Exhibit 10.1 to NYMAGIC's Current Report on Form
8-K (File No. 001-11238) filed on January 10, 2005 and
incorporated herein by reference)
99.2 Waiver Agreement dated as of January 6, 2005
99.3 Voting Agreement dated as of February 20, 2002,
as amended March 1, 2002 (previously filed)
99.4 Amendment No. 2 dated as of January 27, 2003,
to Voting Agreement (previously filed)
99.5 Amendment No. 3 dated as of March 12, 2003,
to Voting Agreement (previously filed)
99.6 Amendment No. 4 dated as of February 24, 2004,
to Voting Agreement
99.7 Joint Filing Agreement (previously filed)
99.8 Power of Attorney (previously filed)
99.9 Waiver dated October 16, 2003 (previously filed)
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.
January 25, 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/ 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
26
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
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
-------------------------------------------------
William D. Shaw, Jr.
by William J. Michaelcheck, Attorney-in-Fact
27
Exhibit 99.2
WAIVER AGREEMENT
Reference is made to the Voting Agreement (the "Voting Agreement") dated
as of February 20, 2002, as amended March 1, 2002 and further amended by
Amendment No. 2 dated as of January 27, 2003, Amendment No. 3 dated as of March
12, 2003 and Amendment No. 4 dated as of February 24, 2004, by and among (i)
MARK W. BLACKMAN; BLACKMAN INVESTMENTS LLC; JOHN N. BLACKMAN, JR. (the "Blackman
Trustee") as trustee of the Blackman Charitable Remainder Trust; and ROBERT G.
SIMSES (the "Tollefson Trustee") as trustee of the Louise B. Tollefson 2000
Florida Intangible Tax Trust, as co-trustee of the Louise B. Tollefson
Charitable Lead Annuity Trust, and as co-trustee of the Bennett H. Tollefson
Charitable Lead Unitrust (the "Participating Shareholders"); (ii) KATHLEEN
BLACKMAN as co-trustee with the Blackman Trustee of the Blackman Charitable
Remainder Trust, (iii) First Union National Bank (now WACHOVIA BANK, N.A.), as
co-trustee with the Tollefson Trustee of the Louise B. Tollefson Charitable Lead
Annuity Trust, and as co-trustee with the Tollefson Trustee of the Bennett H.
Tollefson Charitable Lead Unitrust; and (iv) MARINER PARTNERS, INC.
Capitalized terms not otherwise defined herein are used with the
meanings ascribed to such terms in the Voting Agreement.
In connection with the sale to NYMAGIC, INC. (the "Corporation") of up
to an aggregate of 1,110,000 shares of common stock (the "Transferred Shares")
of the Corporation pursuant to that certain Stock Purchase Agreement among the
Corporation and certain stockholders of the Corporation, a copy of which is
attached to this Waiver Agreement as Exhibit A (the "Stock Purchase Agreement"),
Mariner hereby agrees as follows with respect to those Transferred Shares that
are subject to the Voting Agreement (the "Subject Shares"):
(i) Mariner hereby consents to the sale of the Subject Shares to the
Corporation pursuant to the Stock Purchase Agreement and
irrevocably waives any and all provisions of the Voting Agreement
that would restrict such sale;
(ii) effective upon the completion of the sale of the Subject Shares
to the Corporation pursuant to the Stock Purchase Agreement, the
Subject Shares will be irrevocably released from the provisions
of the Voting Agreement (including without limitation the
provisions contained in ARTICLES III and IX thereof);
(iii) none of the provisions of the Voting Agreement shall be binding
upon the Corporation following the completion of its purchase of
the Subject Shares; and
(iv) the certificates evidencing the Subject Shares sold to the
Corporation pursuant to the Stock Purchase Agreement shall not be
required to contain a legend with respect to the Voting Agreement
following completion of such sale.
[Balance of Page Intentionally Left Blank - Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Waiver Agreement
as of the 6th day of January, 2005.
MARINER PARTNERS, INC.
By: /s/ William J. Michaelcheck
------------------------------------
Name: William J. Michaelcheck
Title: Chairman
2