-----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, H6Z2s2Kp9Gozt48qEVD0DQQQG2X0CKJXfl2fjP8lyUm1YyvDJUCivGBQrFlCZgBV 9Ae76rHz00un1MOuEtwUHg== 0001140361-10-030297.txt : 20100726 0001140361-10-030297.hdr.sgml : 20100726 20100726173035 ACCESSION NUMBER: 0001140361-10-030297 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 25 FILED AS OF DATE: 20100726 DATE AS OF CHANGE: 20100726 GROUP MEMBERS: DAVID BONDERMAN GROUP MEMBERS: GOLDMAN, SACHS & CO. GROUP MEMBERS: GOLDMAN, SACHS MANAGEMENT GP GMBH GROUP MEMBERS: GS ADVISORS VI, L.L.C. GROUP MEMBERS: GS CAPITAL PARTNERS VI FUND, L.P. GROUP MEMBERS: GS CAPITAL PARTNERS VI GMBH & CO. KG GROUP MEMBERS: GS CAPITAL PARTNERS VI OFFSHORE FUND, L.P. GROUP MEMBERS: GS CAPITAL PARTNERS VI PARALLET, L.P. GROUP MEMBERS: GSCP VI ADVISORS, L.L.C. GROUP MEMBERS: GSCP VI OFFSHORE ADVISORS, L.L.C. GROUP MEMBERS: JAMES G. COULTER GROUP MEMBERS: PROSIGHT EQUITY MANAGEMENT INC. GROUP MEMBERS: PROSIGHT INVESTMENT LLC GROUP MEMBERS: PROSIGHT PARALLET INVESTMENT LLC GROUP MEMBERS: PROSIGHT SPECIALTY INSURANCE GROUP, INC. GROUP MEMBERS: PROSIGHT SPECIALTY INSURANCE HOLDINGS, INC. GROUP MEMBERS: PROSIGHT TPG, L.P. GROUP MEMBERS: PSI MERGER SUB INC. GROUP MEMBERS: TPG ADVISORS VI INC. 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 SEC ACT: 1934 Act SEC FILE NUMBER: 005-43571 FILM NUMBER: 10969984 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 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 134019460 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 200 WEST STREET CITY: NEW YORK STATE: NY ZIP: 10282 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 200 WEST STREET CITY: NEW YORK STATE: NY ZIP: 10282 FORMER COMPANY: FORMER CONFORMED NAME: GOLDMAN SACHS GROUP INC/ DATE OF NAME CHANGE: 20010104 SC 13D 1 formsc13d.htm GOLDMAN SACHS GROUP SC13D 7-15-2010 formsc13d.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D
Under the Securities Exchange Act of 1934

NYMAGIC, INC.
 
(Name of Issuer)

Common Stock, par value $1.00 per share
 
(Title of Class of Securities)

629484106
 
(CUSIP Number)

 
 
Copies to:

Goldman, Sachs & Co.
Attention: Ben I. Adler, Esq.
200 West Street
New York, New York 10282
(212) 902-1000
TPG Capital, L.P.
Attention: Ronald Cami, Esq.
301 Commerce Street, Suite 3300
Fort Worth, TX 76102
(817) 871-4000


 
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
 
 
July 15, 2010
 
(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 that is the subject of this Schedule 13D, and is filing this schedule because § 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g) check the following box o
 
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See § 240.13d-7(b) for other parties to whom copies are to be sent.
 
* 
The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
 
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 
 
 
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
The Goldman Sachs Group Inc.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
AF; WC: OO
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
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
 
3,897,301 (See Item 5 below)1
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
18,565 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,897,301 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.3% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
HC-CO
  

_____________________________
1 Includes (i) 18,565 shares of Common Stock (as defined herein) beneficially owned directly by the GS Group (as defined herein) as further described in Item 5 below and (ii) 3,878,736 shares of Common Stock with respect to which the Reporting Persons (as defined herein) may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 2 of 58
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
Goldman, Sachs & Co.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
WC; OO
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
 x
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
New York
  
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH:
7
SOLE VOTING POWER:
 
0
  
8
SHARED VOTING POWER
 
3,897,301 (See Item 5 below)2
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
18,565 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,897,301 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.3% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
BD-PN-IA
  

__________________________
2 Includes (i) 18,565 shares of Common Stock beneficially owned directly by the GS Group as further described in Item 5 below and (ii) 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such benefic ial ownership is expressly disclaimed.

 
Page 3 of 58
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
GSCP VI Advisors, L.L.C.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
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
 
3,878,736 (See Item 5 below)3
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
OO
  

___________________________
3 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 4 of 58
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
GSCP VI Offshore Advisors, L.L.C.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
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
 
3,878,736 (See Item 5 below)4
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
OO
  

___________________________
4 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 5 of 58
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
GS Advisors VI, L.L.C.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
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
 
3,878,736 (See Item 5 below)5
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
OO
  

___________________________
5 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 6 of 58
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
Goldman, Sachs Management GP GmbH
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Germany
  
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH:
7
SOLE VOTING POWER:
 
0
  
8
SHARED VOTING POWER
 
3,878,736 (See Item 5 below)6
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
CO
  

___________________________
6 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 7 of 58
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
GS Capital Partners VI Fund, L.P.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
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
 
3,878,736 (See Item 5 below)7
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
PN
  

___________________________
7 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 8 of 58
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
GS Capital Partners VI Offshore Fund, L.P.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Cayman Islands
  
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH:
7
SOLE VOTING POWER:
 
0
  
8
SHARED VOTING POWER
 
3,878,736 (See Item 5 below)8
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
PN
  

___________________________
8 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 9 of 58
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
GS Capital Partners VI Parallel, L.P.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o
(b) o
3
SEC USE ONLY
  
4
SOURCE OF FUNDS
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
¨
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
 
3,878,736 (See Item 5 below)9
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
PN
  

_________________________
9 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 10 of 58
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
GS Capital Partners VI GmbH & Co. KG
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Germany
  
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH:
7
SOLE VOTING POWER:
 
0
  
8
SHARED VOTING POWER
 
3,878,736 (See Item 5 below)10
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
PN
  

___________________________
10 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 11 of 58
 

CUSIP No.  629484106
13D
Page

1
NAMES OF REPORTING PERSONS
 
ProSight Equity Management Inc.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
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
 
3,878,736 (See Item 5 below)11
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
CO
  

___________________________
11 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 12 of 58
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
ProSight Investment LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
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
 
3,878,736 (See Item 5 below)12
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
OO
  

_________________________
12 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 13 of 58
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
ProSight Parallel Investment LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
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
 
3,878,736 (See Item 5 below)13
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
OO
  

___________________________
13 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 14 of 58
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
ProSight Specialty Insurance Group, Inc.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
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
 
3,878,736 (See Item 5 below)14
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
CO
  

___________________________
14 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 15 of 58
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
ProSight Specialty Insurance Holdings, Inc.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
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
 
3,878,736 (See Item 5 below)15
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
CO
  

___________________________
15 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 16 of 58
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
PSI Merger Sub Inc.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
New York
  
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH:
7
SOLE VOTING POWER:
 
0
  
8
SHARED VOTING POWER
 
3,878,736 (See Item 5 below)16
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
CO
  

___________________________
16 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 17 of 58
 
 
CUSIP No.  629484106
13D
Page
 

 
1
NAMES OF REPORTING PERSONS
 
TPG Advisors VI Inc.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
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
 
3,878,736 (See Item 5 below)17
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
CO
  

___________________________
17 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 18 of 58
 
 
CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
David Bonderman
  
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
United States of America
  
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH:
7
SOLE VOTING POWER:
 
0
  
8
SHARED VOTING POWER
 
3,878,736 (See Item 5 below)
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)18
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
IN
  

___________________________
18 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 19 of 58
 

CUSIP No.  629484106
13D
Page
 
 
1
NAMES OF REPORTING PERSONS
 
James G. Coulter
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o
(b) o
3
SEC USE ONLY
 
  
4
SOURCE OF FUNDS
 
Not applicable
  
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
United States of America
  
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH:
7
SOLE VOTING POWER:
 
0
  
8
SHARED VOTING POWER
 
3,878,736 (See Item 5 below)19
  
9
SOLE DISPOSITIVE POWER
 
0
  
10
SHARED DISPOSITIVE POWER
 
0 (See Item 5 below)
  
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,878,736 (See Item 5 below)
  
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
44.1% (See Item 5 below)
  
14
TYPE OF REPORTING PERSON
 
IN
  

___________________________
19 Consists of 3,878,736 shares of Common Stock with respect to which the Reporting Persons may be deemed to have shared voting power as a result of certain provisions contained in the Shareholders Agreements described in this Schedule 13D.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Persons that they are beneficial owners of such shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 
Page 20 of 58
 


Item 1.            Security and Issuer
 
This Statement on Schedule 13D (this “Schedule 13D”) relates to shares of common stock, par value $1.00 per share (the “Common Stock”), of NYMAGIC, INC., a New York corporation (the “Company”), which has its principal executive office at 919 Third Avenue, New York, New York, 10022.
 
Item 2.            Identity and Background
 
This Schedule 13D is being filed jointly by The Goldman Sachs Group, Inc. (“GS Group”), Goldman, Sachs & Co. (“Goldman Sachs”), GSCP VI Advisors, L.L.C. (“GSCP VI Advisors”), GSCP VI Offshore Advisors, L.L.C. (“GSCP VI Offshore Advisors”), GS Advisors VI, L.L.C. (“GS Advisors VI”), Goldman, Sachs Management GP GmbH (“GS GmbH”), GS Capital Partners VI Fund, L.P. (“GS Capital VI”), GS Capital Partners VI Offshore Fund, L.P. (“GS VI Offshore”), GS Capital Partners VI GmbH & Co. KG (“GS Germany VI”), GS Capital Partners VI Parallel, L.P. (“GS VI Parallel” and, together with GS Capital VI, GS VI Offshore and GS Germany VI, the “GS Funds”), ProSight Equity Management Inc. (“ProSight Equity”), ProSight Investment LLC (“ProSight Investment”), ProSight Parallel Investment LLC (“ProSight Parallel”), ProSight Specialty Insurance Group, Inc. (“ProSight Group”), ProSight Specialty Insurance Holdings, Inc. (“Parent”) and PSI Merger Sub Inc. (“Merger Sub”) (GS Group, Goldman Sachs, GSCP VI Advisors, GSCP VI Offshore Advisors, GS Advisors VI, the GS Funds, ProSight Equity, ProSight Investment, ProSight Parallel, ProSight Group, Parent and Merger Sub collectively, the “GS Reporting Persons”), TPG Advisors VI, Inc., a Delaware corporation (“TPG Advisors VI”), David Bonderman and James G. Coulter (collectively with TPG Advisors IV, the “TPG Reporting Persons”) (together with the GS Reporting Persons, the “Reporting Persons”).20
 
The GS Reporting Persons
 
GS Group is a Delaware corporation and a bank holding company that (directly or indirectly through subsidiaries or affiliated companies or both) is a leading global investment banking, securities and investment management firm. Goldman Sachs, a New York limited partnership, is a member of the New York Stock Exchange and other national exchanges. Goldman Sachs also serves as the manager for GSCP Advisors VI, GSCP VI Offshore Advisors and GS Advisors VI and the investment manager for GS Capital VI, GS VI Offshore, GS Germany VI and GS VI Parallel. Goldman Sachs is wholly owned, directly and indirectly, by GS Group. GS GmbH, a German company with limited liability, is the general partner of GS Germany VI. GSCP Advisors VI, a Delaware limited liability company, is the sole general partner of GS Capital VI. GSCP VI Offshore Advisors, a Delaware limited liability company, is the sole general partner of GS VI Offshore. GS Advisors VI, a Delaware limited liability company, is the sole managing limited partner of GS Germany VI and the sole general partner of GS VI Parallel. Each of GS Capital VI, a Delaware limited partnership, GS VI Offshore, a Cayman Islands exempted limited partnership, GS Germany VI, a German limited partnership, and GS VI Parallel, a Delaware limited partnership, was formed for the purpose of investing in equity, equity-related and similar securities or instruments, including debt or other securities or instruments with equity-like returns or an equity component. ProSight Equity is the managing member of ProSight Investment and ProSight Parallel, each of which are investment vehicles.  GS Capital VI, GS VI Parallel and GS Germany VI are non-managing members of ProSight Investment and GS VI Parallel is the non-managing member of ProSight Parallel. The GS Funds directly hold, in the aggregate, 100% of the equity of ProSight Investment and ProSight Parallel. ProSight Parallel and ProSight Investment own 50.1% of the equity of ProSight Group. ProSight Group owns 100% of the equity of Parent, which is a specialty property and casualty insurance company that aims to create and deliver specialized solutions for groups of customers through limited, exclusive distribution partners.  Parent owns 100% of the equity of Merger Sub.
 
The principal address for each of GS Group, Goldman Sachs, GSCP Advisors VI, GSCP VI Offshore Advisors, GS Advisors VI, GS Capital VI, GS VI Offshore, GS VI Parallel, ProSight Equity, ProSight Investment, ProSight Parallel, Parent and Merger Sub is 200 West Street, New York, New York, 10282.  The principal address for GS GmbH and GS Germany VI is Messeturm, Friedrich-Ebert-Anlage 49, 60323, Frankfurt/Main, Germany. The principal address for ProSight Group is 3562 Round Barn Cir., Suite 200, Santa Rosa, CA 95403.

___________________________
20 Neither the present filing nor anything contained herein shall be construed as an admission that any Reporting Person constitutes a “person” for any purpose other than for compliance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 
Page 21 of 58
 
 
The name, business address, present principal occupation or employment and citizenship of each director of GS Group are set forth in Schedule I hereto and are incorporated herein by reference. The name, business address, present principal occupation or employment and citizenship of each executive officer of GSCP Advisors VI are set forth in Schedule II-A hereto and are incorporated herein by reference. The name, business address, present principal occupation or employment and citizenship of each executive officer of GSCP VI Offshore Advisors are set forth in Schedule II-B hereto and are incorporated herein by reference. The name, business address, present principal occupation or employment and citizenship of each executive officer of GS Advisors VI are set forth in Schedule II-C hereto a nd are incorporated herein by reference. The name, business address, present principal occupation or employment and citizenship of each executive officer of GS GmbH are set forth in Schedule II-D hereto and are incorporated herein by reference. The name, business address, present principal occupation or employment and citizenship of each member of the Corporate Investment Committee of Goldman Sachs, which is responsible for making all investment decisions for each of GSCP Advisors VI, GSCP VI Offshore Advisors and GS Advisors VI on behalf of Goldman Sachs, are set forth in Schedule II-E hereto and are incorporated herein by reference. The name, business address, present principal occupation or employment and citizenship of each director and executive officer of ProSight Equity are set forth on Schedule II-F hereto and are incorporated herein by reference.  The name, business address, present principal occupation or employment and citizenship of each director and executive officer of ProSight Group are set forth on Schedule II-G hereto and are incorporated herein by reference.  The name, business address, present principal occupation or employment and citizenship of each director and executive officer of Parent are set forth on Schedule II-H hereto and are incorporated herein by reference.  The name, business address, present principal occupation or employment and citizenship of each director and executive officer of Merger Sub are set forth on Schedule II-I hereto and are incorporated herein by reference.
 
During the past five years, none of the GS Reporting Persons (or, to the knowledge of the GS Reporting Persons, any of the persons listed on Schedules I - II hereto) (i) has been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) except as set forth on Schedule IV hereto, was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding 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 violation with respect to such laws.
 
The TPG Reporting Persons
 
The principal business of TPG Advisors VI is serving as the sole ultimate general partner of related entities engaged in making investments in securities of public and private companies. TPG Advisors VI is the sole general partner of ProSight TPG, L.P., a Delaware limited partnership which owns 49.9% of the equity of ProSight Group. David Bonderman and James G. Coulter are the sole shareholders of TPG Advisors VI. Through Prosight Group, and as described in greater detail in Item 5, the TPG Reporting Persons may be deemed to have beneficial ownership of 3,878,736 shares of Common Stock reported herein except to the extent disclaimed herein. The present principal occupation of David Bonderman is Chairman of the Board and President of TPG Advisors VI and other affiliated entities. The present principal occupation of James G. Coulter is director and Vice President of TPG Advisors VI and other affiliated entities.
 
The business address of each of the TPG Reporting Persons is 301 Commerce Street, Suite 3300, Fort Worth, Texas 76102.  The name, residence or business address, and present principal occupation or employment of each director, executive officer and controlling person of TPG Advisors VI are listed on Schedule III.  Each of David Bonderman, James G. Coulter and the individuals referred to on Schedule III is a United States citizen.
 
During the past five years, none of the TPG Reporting Persons (or, to the knowledge of the TPG Reporting Persons, any of the persons listed on Schedule III hereto) (i) has been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding 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 violation with respect to such laws.
 
The TPG Reporting Persons and the GS Reporting Persons may be deemed to be a “group” pursuant to Rule 13d-5(b)(1) of the Act. The TPG Reporting Persons do not expressly affirm membership in a group with the GS Reporting Persons, and disclaim beneficial ownership of any shares of Common Stock held by the GS Reporting Persons, and the GS Reporting Persons do not expressly affirm membership in a group with the TPG Reporting Persons and disclaim beneficial ownership of any shares of Common Stock held by the TPG Reporting Persons. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission that (i) the TPG Reporting Persons or any of their respective affiliates are the beneficial owners of any shares of Common Stock beneficially owned by the GS Reporting Persons or (ii) the GS Repo rting Persons or any of their respective affiliates are the beneficial owners of any shares of Common Stock beneficially owned by the TPG Reporting Persons, in each case for purposes of Section 13(d) of the Exchange Act or for any other purpose.
 
 
Page 22 of 58
 

The agreement among the GS Reporting Persons and the TPG Persons relating to the joint filing of this Schedule 13D is attached as Exhibit 99.1 hereto.
 
Item 3.           Source and Amount of Funds or Other Consideration
 
On July 15, 2010, concurrently with the execution of the Merger Agreement (as defined in Item 4 below), Parent and Merger Sub entered into Shareholders Agreements (as defined in Item 4 below) with respect to 3,878,736 shares of Common Stock owned by the Shareholders (as defined in Item 4 below) pursuant to which the Shareholders agreed to vote their shares of Common Stock in favor of approving and adopting the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger (as defined in Item 4 below).  No shares of Common Stock were purchased by the Reporting Persons pursuant to the Shareholders Agreements and thus no funds were used by the Reporting Persons for such purpose.
 
Funds for shares of Common Stock acquired in ordinary course trading activities by Goldman Sachs or another wholly-owned broker or dealer subsidiary of GS Group and reported as beneficially owned came from the working capital of Goldman Sachs or other such subsidiary.  Funds for shares of Common Stock which may be deemed to be beneficially owned by the Reporting Persons held in client accounts with respect to which Goldman Sachs or another wholly-owned subsidiary of GS Group or their employees have investment discretion ("Managed Accounts") came from client funds.  The Reporting Persons disclaim beneficial ownership of shares of Common Stock held in Managed Accounts.
 
The information set forth in response to this Item 3 is qualified in its entirety by reference to the Shareholders Agreements, copies of which are filed herewith as Exhibits 99.3 – 99.12.
 
Item 4.            Purpose of Transaction
 
The Company and two of the Reporting Persons, Parent and Merger Sub, have entered into an  Agreement and Plan of Merger, dated as of July 15, 2010 (the “Merger Agreement”), providing for the merger of Merger Sub with and into the Company, with the Company continuing as the surviving corporation and a wholly-owned subsidiary of Parent (the “Merger”). At the effective time of the Merger, the outstanding shares of Common Stock (other than shares owned by the Company, Parent or Merger Sub, which will be cancelled for no consideration, and shares owned by the Company’s subsidiaries, which will remain outstanding and be adjusted as appropriate to maintain each subsidiary’s relative ownership percentage in the Company) will be cancelled and con verted into the right to receive $25.75 in cash, without interest.  If the Merger is consummated as planned, the Reporting Persons anticipate that the Company will become controlled by the Reporting Persons and Parent and that the Reporting Persons will seek to cause the Common Stock to be de-registered under the Securities Exchange Act of 1934, as amended, and to cease to be traded or quoted on any over-the-counter network.
 
Upon consummation of the Merger, the directors of Merger Sub immediately prior to the Merger and the officers of the Company immediately prior to the Merger shall in each case be the directors and officers of the surviving corporation until their respective successors are duly elected or appointed and qualified or their death, resignation or removal in accordance with the articles of incorporation and by-laws of the surviving corporation.
 
The consummation of the Merger is subject to various conditions, including, but not limited to, (i) obtaining the approval of Company shareholders, (ii) expiration or termination of the applicable Hart-Scott-Rodino Antitrust Improvements Act waiting period, (iii) receipt of insurance regulatory approvals and (iv) the Company having a minimum tangible book value of at least $205,000,000. The Merger Agreement may be terminated by the Company or the Parent under certain circumstances.  For additional details on these rights of termination, reference is made to the Merger Agreement.
 
As an inducement for Parent and Merger Sub to enter into the Merger Agreement with the Company, Mark W. Blackman, Paul J. Hart, Thomas J. Iacopelli, A. George Kallop and Elizabeth B. Kallop, George R. Trumbull, III, Conning Capital Partners VI, L.P. (“Conning Capital Partners”), Lionshead Investments, LLC, Estate of Louise B. Tollefson, Louise B. Tollefson 2000 Florida Intangible Tax Trust and Louise B. Tollefson Family Foundation, shareholders of the Company (together, the “Shareholders”) holding 3,878,736 shares of the Common Stock, or approximately 44.1% of the total issued and outstanding Common Stock in the aggregate as of July 15, 2010, e ach entered into a separate shareholders agreement (together, the “Shareholders Agreements”) with Parent and Merger Sub.
 
 
Page 23 of 58
 

The Shareholders have agreed to vote (i) in favor of (A) the adoption of the Merger Agreement and the transactions contemplated thereby and (B) approval of any proposal to adjourn or postpone any meeting of the shareholders of the Company to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (or amendment to any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any inquiry, proposal or offer from any third party relating to, in a single transaction or series of related transactions, any (A) acquisition of assets of the Company and its subsidiaries (includ ing securities of subsidiaries) equal to 20% or more of the Company’s consolidated assets or to which 20% or more of the Company’s revenues or earnings on a consolidated basis are attributable, (B) acquisition of beneficial ownership (within the meaning of Section 13 under the Exchange Act) of 20% or more of any class of equity securities of the Company, (C) tender offer or exchange offer that if consummated would result in any person (or “group,” as defined under Section 13 of the Exchange Act) beneficially owning 20% or more of the outstanding Common Stock of the Company or (D) merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its subsidiaries; in each case, other than the transactions contemplated by the Merger Agreement, and (iv) against any agreement (or amendment to any agreement), amendment of the articles of incorporation or by-laws of the Company or other action that i s intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Merger Agreement and the transactions contemplated thereby. Pursuant to the Shareholders Agreement, the Shareholders granted Parent a proxy to vote the shares of Common Stock beneficially owned by the Shareholders in the matter described in the immediately preceding sentence.
 
The Shareholders Agreements will terminate upon the earliest to occur of (i) the effective time of the Merger, (ii) April 15, 2011, (iii) the termination of the Merger Agreement in accordance with its terms and (iv) the effectiveness of any amendment, modification, supplement to, or waiver under, the Merger Agreement which would reduce the amount or change the form or composition of the Merger Consideration payable.

The Reporting Persons are not paying any additional compensation to the Shareholders in connection with the execution and delivery of the Shareholders Agreements.
 
The information set forth in response to this Item 4, including the foregoing summary of certain provisions of the Merger Agreement and the Shareholders Agreement, is qualified in its entirety by reference to the Merger Agreement and the Shareholders Agreements, copies of which are filed herewith as Exhibit 99.2 and Exhibits 99.3 – 99.12 hereto, respectively, and are hereby incorporated herein by reference.
 
Item 5.            Interest in Securities of the Issuer
 
The information set forth or incorporated in Items 2, 3, 4, 5 and 6 is hereby incorporated herein by reference.
 
 
(a) and (b): The following disclosure assumes that there are 8,799,513 shares of Common Stock outstanding, which includes 8,499,513 shares of Common Stock that the Company represented in the Merger Agreement was the number of outstanding shares as of July 14, 2010, in addition to 300,000 shares of Common Stock issuable upon conversion of options held by Conning Capital Partners.  The following disclosure further assumes that the Shareholders beneficially own 3,878,736 shares, which is the total number of shares of Common Stock that the Shareholders represented in the Shareholders Agreements they beneficially owned in total as of July 15, 2010, including the options held by Conning Capital Partners, which may be exercised prior to the closing of the Merger.  As a result of the Shareholders Agreements, the Reporting Persons may be deemed for the purposes of Rule 13d-3 promulgated under the Exch ange Act to beneficially own 3,878,736 shares of Common Stock, representing, for the purposes of Rule 13d-3, approximately 44.1% of the outstanding shares of Common Stock.  Except to the extent the Reporting Persons may be deemed to have beneficial ownership as a result of such Shareholders Agreements, the Reporting Persons disclaim any beneficial ownership of such shares, and nothing herein shall be deemed to be an admission by the Reporting Persons as to the beneficial ownership of such shares.
 
As of July 15, 2010, each of GS Group and Goldman Sachs may be deemed to have beneficially owned an aggregate of 18,565 shares of Common Stock, including (i) 17,565 shares of Common Stock acquired by Goldman Sachs or another wholly-owned broker or dealer subsidiary of GS Group in ordinary course trading activities and (ii) 1,000 shares of Common Stock held in Managed Accounts, representing in the aggregate approximately 0.02% of the shares of Common Stock reported to be outstanding as represented in the Merger Agreement.  GS Group and Goldman Sachs each disclaim beneficial ownership of the shares of Common Stock held in Managed Accounts.
 
 
Page 24 of 58
 

Except for the 18,565 shares of Common Stock beneficially owned directly by Goldman Sachs and which may be deemed beneficially owned indirectly by GS Group, and to the extent that they may be deemed to have any such power by virtue of the Shareholders Agreements, the Reporting Persons do not have sole power to vote or direct the vote, shared power to vote or direct the vote, or the sole or shared power to dispose or to direct the disposition of any of the shares of Common Stock.  The Reporting Persons may be deemed in certain circumstances, as more fully described in Item 4, to have the shared power of the Shareholders to vote 3,878,736 shares of Common Stock.  However, the Reporting Persons are not entitled to any rights as a shareholder of the Company as to the shares of Common Stock that are the subject of the S hareholders Agreements. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission that (i) the TPG Reporting Persons or any of their respective affiliates are the beneficial owners of any shares of Common Stock beneficially owned by the GS Reporting Persons or (ii) the GS Reporting Persons or any of their respective affiliates are the beneficial owners of any shares of Common Stock beneficially owned by the TPG Reporting Persons, in each case for purposes of Section 13(d) of the Exchange Act or for any other purpose.
 
Except as set forth in this Item 5, none of the Reporting Persons beneficially owns any shares of Common Stock.
 
In accordance with Securities and Exchange Commission Release No. 34-395538 (January 12, 1998) (the “Release”), this filing reflects the securities beneficially owned by certain operating units (collectively, the “Goldman Sachs Reporting Units”) of GS Group and its subsidiaries and affiliates (collectively, “GSG”).  This filing does not reflect securities, if any, beneficially owned by any operating units of GSG whose ownership of securities is disaggregated from that of the Goldman Sachs Reporting Units in accordance with the Release.  The Goldman Sachs Reporting Units disclaim beneficial ownership of the securities beneficially owned by (i) any client accounts with respect to which the Goldman Sachs Reporting Units or their employees have voting or investment discretion, or bot h, and (ii) certain investment entities of which the Goldman Sachs Reporting Units acts as the general partner, managing general partner or other manager, to the extent interests in such entities are held by persons other than the Goldman Sachs Reporting Units.
 
 
(c):  Except for the execution and delivery of the Merger Agreement and the Shareholders Agreements, or, in the case of the GS Reporting Persons only, as set forth on Schedule V hereto, (i) none of the GS Reporting Persons nor, to the best knowledge of each of the GS Reporting Persons, without independent verification, any of the persons listed on Schedule I – II hereto, has effected any transaction in the shares of Common Stock during the past 60 days and (ii) none of the TPG Reporting Persons nor, to the best knowledge of each of the TPG Reporting Persons, without independent verification, any of the persons listed on Schedule III hereto, has effected any transaction in the shares of Common Stock during the past 60 days.
 
 
(d):  The TPG Reporting Persons do not know of any other person who has the power to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of Common Stock. Except for clients of Goldman Sachs who may have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of any shares of Common Stock held in Managed Accounts, no other person is known by the GS Reporting Persons to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of Common Stock.
 
 
(e):  Not applicable.
 
Item 6.            Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
 
Except for the Merger Agreement and Shareholders Agreements described above, to the knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise), including, but not limited to, transfer or voting of any securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees or profits, division of profits or loss, or the giving or withholding of proxies among the persons named in Item 2 or between such persons and any other person, with respect to any securities of the Company, including any securities pledged or otherwise subject to a contingency the occurrence of which would give another person voting power or investment power over such securities other than standard default and similar pr ovisions contained in loan agreements.  In addition, Goldman Sachs has a short position equivalent to 60,866 shares of Common Stock.
 
 
Page 25 of 58
 

Item 7.            Material to Be Filed as Exhibits
 
Agreement of Joint Filing, as required by Rule 13d-1(k)(1) under the Act, dated as of July 26, 2010, by and among the Goldman Sachs Group Inc., Goldman, Sachs & Co., Goldman, Sachs Management GP GmbH, GS Capital Partners VI Fund, L.P., GS Capital Partners VI Offshore Fund, L.P., GS Capital Partners VI Parallel, L.P., GS Capital Partners VI GmbH & Co. KG, GSCP Advisors, L.L.C., GSCP VI Offshore Advisors, L.L.C., GS Advisors VI, L.L.C., ProSight Equity Management Inc., ProSight Parallel Investment LLC, ProSight Investment LLC, ProSight Specialty Insurance Group, Inc., ProSight Specialty Insurance Holdings, Inc., PSI Merger Sub Inc., TPG Advisors VI, Inc., David Bonderman and James G. Coulter
Shareholders Agreement, dated July 15, 2010, by and among Parent, Merger Sub and Mark W. Blackman
Shareholders Agreement, dated July 15, 2010, by and among Parent, Merger Sub and Paul J. Hart
Shareholders Agreement, dated July 15, 2010, by and among Parent, Merger Sub and Thomas J. Iacopelli
Shareholders Agreement, dated July 15, 2010, by and among Parent, Merger Sub, A. George Kallop and Elizabeth B. Kallop
Shareholders Agreement, dated July 15, 2010, by and among Parent, Merger Sub and George R. Trumbull III
Shareholders Agreement, dated July 15, 2010, by and among Parent, Merger Sub and Conning Capital Partners VI, L.P.
Shareholders Agreement, dated July 15, 2010, by and among Parent, Merger Sub and Louise B. Tollefson
Shareholders Agreement, dated July 15, 2010, by and among Parent, Merger Sub and Lionshead Investments, LLC
Shareholders Agreement, dated July 15, 2010, by and among Parent, Merger Sub and Louise B. Tollefson 2000 Florida Intangible Tax Trust
Shareholders Agreement, dated July 15, 2010, by and among Parent, Merger Sub and Louise B. Tollefson Family Foundation
Power of Attorney, dated October 6, 2008, relating to The Goldman Sachs Group, Inc.
Power of Attorney, dated October 6, 2008, relating to Goldman, Sachs & Co.
Power of Attorney, dated April 1, 2008, relating to GSCP VI Advisors, L.L.C.
Power of Attorney, dated April 1, 2008, relating to GSCP VI Offshore Advisors, L.L.C.
Power of Attorney, dated April 1, 2008, relating to GS Advisors VI, L.L.C.
Power of Attorney, dated December 27, 2007, relating to Goldman, Sachs Management GP GmbH
Power of Attorney, dated April 1, 2008, relating to GS Capital Partners VI Fund, L.P.
Power of Attorney, dated April 1, 2008, relating to GS Capital Partners VI Offshore Fund, L.P.
Power of Attorney, dated April 1, 2008, relating to GS Capital Partners VI Parallel, L.P.
Power of Attorney, dated April 1, 2008, relating to GS Capital Partners VI GmbH & Co. KG

 
Page 26 of 58
 

Authorization and designation letter, dated July 1, 2010, by David Bonderman
Authorization and designation letter, dated July 1, 2010, by James G. Coulter

 
Page 27 of 58
 

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.
 
Dated: July 26, 2010
 
THE GOLDMAN SACHS GROUP, INC.
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GOLDMAN, SACHS & CO.
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GOLDMAN, SACHS MANAGEMENT GP GMBH
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GSCP VI ADVISORS, L.L.C.
 
 
 
By: /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GSCP VI OFFSHORE ADVISORS, L.L.C.
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GS ADVISORS VI, L.L.C.
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 
 
 
Page 28 of 58
 


GS CAPITAL PARTNERS VI FUND, L.P.
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GS CAPITAL PARTNERS VI OFFSHORE FUND, L.P.
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GS CAPITAL PARTNERS VI PARALLEL, L.P.
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GS CAPITAL PARTNERS VI GMBH & CO. KG
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

PROSIGHT EQUITY MANAGEMENT INC.
 
 
 
By:  /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title:  President
 

PROSIGHT INVESTMENT LLC
 
 
 
By: PROSIGHT EQUITY MANAGEMENT INC., its Managing Member
 
By:  /s/ Sumit Rajpal
  
Name: Sumit Rajpal
 
Title:  President
 
 
 
Page 29 of 58
 

PROSIGHT PARALLEL INVESTMENT LLC
 
 
 
By: PROSIGHT EQUITY MANAGEMENT INC., its Managing Member
 
By:  /s/ Sumit Rajpal
  
Name:  Sumit Rajpal
 
Title: President
  

PROSIGHT SPECIALTY INSURANCE GROUP, INC.
 
 
 
By:  /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title:  Vice President
 

PROSIGHT SPECIALTY INSURANCE HOLDINGS, INC.
 
 
 
By:  /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title:  Vice President
 

PSI MERGER SUB INC.
 
 
 
By:  /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title:  Vice President
 

 
Page 30 of 58
 

TPG ADVISORS VI, INC.
 
 
 
By:  /s/ Ron Cami
  
Name: Ron Cami
  
Title: Vice President
 

David Bonderman
 
 
 
By:  /s/ Ron Cami on behalf of David Bonderman (1)
  
Name: Ron Cami on behalf of David Bonderman (1)
  

James G. Coulter
 
 
 
By:  /s/ Ron Cami on behalf of James G. Coulter (2)
  
Name: Ron Cami on behalf of James G. Coulter (2)
  


(1)
Ron Cami is signing on behalf of Mr. Bonderman pursuant to an authorization and designation letter dated July 1, 2010, which is filed as an exhibit herewith.

(2)
Ron Cami is signing on behalf of Mr. Coulter pursuant to the authorization and designation letter dated July 1, 2010, which is filed as an exhibit herewith.

 
Page 31 of 58
 

CUSIP No. 629484106

SCHEDULE I


The name of each director of The Goldman Sachs Group, Inc. is set forth below.

The business address of each person listed below is c/o Goldman, Sachs & Co., 200 West Street, New York, New York 10282.

Each person is a citizen of the United States of America except for Claes Dahlback, who is a citizen of Sweden, and Lakshmi N. Mittal, who is a citzen of India. The present principal occupation or employment of each of the listed persons is set forth below.

 
 
Name
  
Present Principal Occupation
 
Lloyd C. Blankfein
  
Chairman of the Board and Chief Executive Officer of The Goldman Sachs Group, Inc.
 
Gary D. Cohn
  
President and Chief Operating Officer of The Goldman Sachs Group, Inc.
 
John H. Bryan
  
Retired Chairman and Chief Executive Officer of Sara Lee Corporation
 
Claes Dahlback
  
Senior Advisor to Investor AB and Foundation Asset Management
 
Stephen Friedman
  
Chairman of Stone Point Capital
 
William W. George
  
Professor of Management Practice at the Harvard Business School and Former Chairman and Chief Executive Officer of Medtronic, Inc.
 
James A. Johnson
  
Vice Chairman of Perseus, L.L.C.
 
Lois D. Juliber
  
Former Vice Chairman and Chief Operating Officer of the Colgate-Palmolive Company
 
Lakshmi N. Mittal
  
Chairman and Chief Executive Officer of ArcelorMittal S.A.
 
James J. Schiro
  
Former Chief Executive Officer of Zurich Financial Services
 
H. Lee Scott, Jr.
  
Chairman of the Executive Committee of the board of Wal-Mart Stores, Inc.

 
Page 32 of 58
 

CUSIP No. 629484106

SCHEDULE II-A

The name, position and present principal occupation of each executive officer of GSCP VI Advisors, L.L.C., the sole general partner of GS Capital Partners VI Fund, L.P., are set forth below.

The business address for all the executive officers listed below is c/o Goldman, Sachs & Co., 200 West Street, New York, New York 10282, except as follows: The business address of each of Hughes B. Lepic, Michael M. Furth, Robert R. Gheewalla, Martin A. Hintze Philippe Camu, Philippe H. Lenoble and Penny McSpadden is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The business address of each of Sanggyun Ahn and Andrew Wolff is Cheung Kong Center, 68th Floor, 2 Queens Road, Central, Hong Kong. The business address of each of Joseph P. DiSabato and Peter J. Perrone is 555 California Street, San Francisco, CA 94104. The business address of Muneer A. Satter is 71 South Wacker Drive, Chicago, IL 60606. The business address of Thomas D. Ferguson is 100 Crescent Court, Suite 1000, Dallas, TX 75201.

All executive officers listed below are United States citizens, except as follows: Hughes B. Lepic is a citizen of France; Adrian M. Jones and Michael M. Furth are citizens of Ireland; Martin Hintze is a citizen of Germany; Sanggyun Ahn is a citizen of South Korea; Julian C. Allen is a citizen of the United Kingdom and Philippe Camu and Philippe H. Lenoble are citizens of Belgium.


Name
  
Position
  
Present Principal Occupation
         
Richard A. Friedman
  
President
  
Managing Director of Goldman, Sachs & Co.
         
Sanggyun Ahn
  
Vice  President
  
Managing Director of Goldman Sachs (Asia) L.L.C.
         
John E. Bowman
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Gerald J. Cardinale
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Thomas G. Connolly
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Henry Cornell
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Joseph P. DiSabato
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Steven M. Feldman
  
Vice President
  
Managing Director of Goldman, Sachs & Co
         
Michael M. Furth
  
Vice President
  
Managing Director of Goldman Sachs International
         
Robert R. Gheewalla
  
Vice President
  
Managing Director of Goldman Sachs International
         
Joseph H. Gleberman
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Martin A. Hintze
  
Vice President
  
Managing Director of Goldman Sachs International
         
Adrian M. Jones
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Michael E. Koester
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Hughes B. Lepic
  
Vice President
  
Managing Director of Goldman Sachs International
         
Sanjeev K. Mehra
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         

 
Page 33 of 58
 

Peter J. Perrone
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Kenneth A. Pontarelli
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Richard H. Powers
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Muneer A. Satter
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Andrew E. Wolff
  
Vice President
  
Managing Director of Goldman Sachs (Asia) L.L.C.
         
Julian C. Allen
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Philippe Camu
  
Vice President
  
Managing Director of Goldman Sachs International
         
Thomas D. Ferguson
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Philippe H. Lenoble
  
Vice President
  
Managing Director of Goldman Sachs International
         
Peter Vermette
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Penny McSpadden
  
Vice President
  
Managing Director of Goldman Sachs International
         
Elizabeth C. Fascitelli
  
Vice President and Treasurer
  
Managing Director of Goldman, Sachs & Co.
         
Eric Goldstein
  
Vice President and Secretary
  
Vice President of Goldman, Sachs & Co.

 
Page 34 of 58
 

CUSIP No. 629484106

SCHEDULE II-B

The name, position and present principal occupation of each executive officer of GSCP VI Offshore Advisors, L.L.C., the sole general partner of GS Capital Partners VI Offshore Fund, L.P., are set forth below.

The business address for all the executive officers listed below is c/o Goldman, Sachs & Co., 200 West Street, New York, New York 10282, except as follows: The business address of each of Hughes B. Lepic, Michael M. Furth, Robert R. Gheewalla, Martin A. Hintze Philippe Camu, Philippe H. Lenoble and Penny McSpadden is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The business address of each of Sanggyun Ahn and Andrew Wolff is Cheung Kong Center, 68th Floor, 2 Queens Road, Central, Hong Kong. The business address of each of Joseph P. DiSabato and Peter J. Perrone is 555 California Street, San Francisco, CA 94104. The business address of Muneer A. Satter is 71 South Wacker Drive, Chicago, IL 60606. The business address of Thomas D. Ferguson is 100 Crescent Court, Suite 1000, Dallas, TX 75201.

All executive officers listed below are United States citizens, except as follows: Hughes B. Lepic is a citizen of France; Adrian M. Jones and Michael M. Furth are citizens of Ireland; Martin Hintze is a citizen of Germany; Sanggyun Ahn is a citizen of South Korea; Julian C. Allen is a citizen of the United Kingdom and Philippe Camu and Philippe H. Lenoble are citizens of Belgium.

Name
  
Position
  
Present Principal Occupation
         
Richard A. Friedman
  
President
  
Managing Director of Goldman, Sachs & Co.
R
        
Sanggyun Ahn
  
Vice  President
  
Managing Director of Goldman Sachs (Asia) L.L.C.
         
John E. Bowman
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Gerald J. Cardinale
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Thomas G. Connolly
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Henry Cornell
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Joseph P. DiSabato
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Steven M. Feldman
  
Vice President
  
Managing Director of Goldman, Sachs & Co
         
Michael M. Furth
  
Vice President
  
Managing Director of Goldman Sachs International
         
Robert R. Gheewalla
  
Vice President
  
Managing Director of Goldman Sachs International
         
Joseph H. Gleberman
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Martin A. Hintze
  
Vice President
  
Managing Director of Goldman Sachs International
         
Adrian M. Jones
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Michael E. Koester
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Hughes B. Lepic
  
Vice President
  
Managing Director of Goldman Sachs International
         
Sanjeev K. Mehra
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         

 
Page 35 of 58
 

Peter J. Perrone
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Kenneth A. Pontarelli
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Richard H. Powers
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Muneer A. Satter
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Andrew E. Wolff
  
Vice President
  
Managing Director of Goldman Sachs (Asia) L.L.C.
         
Julian C. Allen
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Philippe Camu
  
Vice President
  
Managing Director of Goldman Sachs International
         
Thomas D. Ferguson
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Philippe H. Lenoble
  
Vice President
  
Managing Director of Goldman Sachs International
         
Peter Vermette
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Penny McSpadden
  
Vice President
  
Managing Director of Goldman Sachs International
         
Elizabeth C. Fascitelli
  
Vice President and Treasurer
  
Managing Director of Goldman, Sachs & Co.
         
Eric Goldstein
  
Vice President and Secretary
  
Vice President of Goldman, Sachs & Co.

 
Page 36 of 58
 

CUSIP No. 629484106

SCHEDULE II-C

The name, position and present principal occupation of each executive officer of GS Advisors VI, L.L.C., the sole general partner of GS Capital Partners VI Parallel, L.P., are set forth below.

The business address for all the executive officers listed below is c/o Goldman, Sachs & Co., 200 West Street, New York, New York 10282, except as follows: The business address of each of Hughes B. Lepic, Michael M. Furth, Robert R. Gheewalla, Martin A. Hintze Philippe Camu, Philippe H. Lenoble and Penny McSpadden is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The business address of each of Sanggyun Ahn and Andrew Wolff is Cheung Kong Center, 68th Floor, 2 Queens Road, Central, Hong Kong. The business address of each of Joseph P. DiSabato and Peter J. Perrone is 555 California Street, San Francisco, CA 94104. The business address of Muneer A. Satter is 71 South Wacker Drive, Chicago, IL 60606. The business address of Thomas D. Ferguson is 100 Crescent Court, Suite 1000, Dallas, TX 75201.

All executive officers listed below are United States citizens, except as follows: Hughes B. Lepic is a citizen of France; Adrian M. Jones and Michael M. Furth are citizens of Ireland; Martin Hintze is a citizen of Germany; Sanggyun Ahn is a citizen of South Korea; Julian C. Allen is a citizen of the United Kingdom and Philippe Camu and Philippe H. Lenoble are citizens of Belgium.

Name
  
Position
  
Present Principal Occupation
         
Richard A. Friedman
  
President
  
Managing Director of Goldman, Sachs & Co.
         
Sanggyun Ahn
  
Vice  President
  
Managing Director of Goldman Sachs (Asia) L.L.C.
         
John E. Bowman
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Gerald J. Cardinale
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Thomas G. Connolly
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Henry Cornell
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Joseph P. DiSabato
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Steven M. Feldman
  
Vice President
  
Managing Director of Goldman, Sachs & Co
         
Michael M. Furth
  
Vice President
  
Managing Director of Goldman Sachs International
         
Robert R. Gheewalla
  
Vice President
  
Managing Director of Goldman Sachs International
         
Joseph H. Gleberman
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Martin A. Hintze
  
Vice President
  
Managing Director of Goldman Sachs International
         
Adrian M. Jones
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Michael E. Koester
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Hughes B. Lepic
  
Vice President
  
Managing Director of Goldman Sachs International
         
Sanjeev K. Mehra
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         

 
Page 37 of 58
 

Peter J. Perrone
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Kenneth A. Pontarelli
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Richard H. Powers
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Muneer A. Satter
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Andrew E. Wolff
  
Vice President
  
Managing Director of Goldman Sachs (Asia) L.L.C.
         
Julian C. Allen
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Philippe Camu
  
Vice President
  
Managing Director of Goldman Sachs International
         
Thomas D. Ferguson
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Philippe H. Lenoble
  
Vice President
  
Managing Director of Goldman Sachs International
         
Peter Vermette
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Penny McSpadden
  
Vice President
  
Managing Director of Goldman Sachs International
         
Elizabeth C. Fascitelli
  
Vice President and Treasurer
  
Managing Director of Goldman, Sachs & Co.
         
Eric Goldstein
  
Vice President and Secretary
  
Vice President of Goldman, Sachs & Co.

 
Page 38 of 58
 

CUSIP No. 629484106

SCHEDULE II-D

The name, position and present principal occupation of each executive officer of GS Management GP GmbH, the sole managing partner of GS Capital Partners VI GmbH & Co. KG, are set forth below.

The business address for each of the executive officers listed below is c/o Goldman, Sachs & Co., 200 West Street, New York, New York 10282, except for Simon B. Cresswell, whose business address is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England.

All executive officers listed below are United States citizens, except as follows: Sarah E. Smith is a citizen of the United Kingdom, and Simon B. Cresswell is a citizen of Australia.

Name
  
Position
  
Present Principal Occupation
         
Richard A. Friedman
  
Managing Director
  
Managing Director of Goldman, Sachs & Co.
         
Joseph H. Gleberman
  
Managing Director
  
Managing Director of Goldman, Sachs & Co.
         
Ben I. Adler
  
Managing Director
  
Managing Director of Goldman, Sachs& Co.
         
Henry Cornell
  
Managing Director
  
Managing Director of Goldman, Sachs& Co.
         
Elizabeth C. Fascitelli
  
Managing Director
  
Managing Director of Goldman, Sachs& Co.
         
Sarah E. Smith
  
Managing Director
  
Managing Director of Goldman, Sachs& Co.
         
Katherine B. Enquist
  
Managing Director
  
Managing Director of Goldman, Sachs& Co.
         
John E. Bowman
  
Managing Director
  
Managing Director of Goldman, Sachs& Co.
         
Simon B. Cresswell
  
Managing Director
  
Vice President of Goldman Sachs International

 
Page 39 of 58
 

CUSIP No. 629484106

SCHEDULE II-E

The name and principal occupation of each member of the Principal Investment Area Investment Committee of Goldman, Sachs & Co., which exercises the authority of Goldman, Sachs & Co. in managing GSCP VI Advisors, L.L.C., GS Capital Partners VI Fund, L.P., GSCP VI Offshore Advisors, L.L.C., GS Capital Partners VI Offshore Fund, L.P., GS Advisors VI, L.L.C., GS Capital Partners VI Parallel, L.P., GS Capital Partners VI GmbH & Co. KG, GSCP V Advisors, L.L.C., GS Capital Partners V Fund, L.P., GSCP V Offshore Advisors, L.L.C., GS Capital Partners V Offshore Fund, L.P., GS Advisors V, L.L.C., GS Capital Partners V Institutional, L.P. and GS Capital Partners V GmbH & Co. KG are set forth below.

The business address for each member listed below is c/o Goldman, Sachs & Co., 200 West Street, New York, New York 10282, except as follows: The business address of each of Robert R. Gheewalla, Hughes B. Lepic and Martin A. Hintze is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The business address of Muneer A. Satter is 71 South Wacker Drive, Chicago, IL 60606. The business address of each of  Sanggyun Ahn and Andrew E. Wolff is Cheung Kong Center, 68th Floor, 2 Queens Road, Central, Hong Kong. The business address of each of Ankur A. Sahu and  Shigeki Kiritani is Roppongi Hills, Mori Tower, Level 43-48, 10-1, Roppongi 6-chome, Minato-ku, Tokyo, 106-6147, Japan.

All members listed below are United States citizens, except as follows: Sarah E. Smith is a citizen of the United Kingdom; Hughes B. Lepic is a citizen of France; Adrian M. Jones is a citizen of Ireland; Martin A. Hintze is a citizen of Germany; Sanggyun Ahn is a citizen of South Korea, Shigeki Kiritani is a citizen of Japan and Ankur A. Sahu is a citizen of India.
 
 
Name
  
Present Principal Occupation
     
Richard A. Friedman
  
Managing Director of Goldman, Sachs & Co.
     
Joseph H. Gleberman
  
Managing Director of Goldman, Sachs & Co.
     
Henry Cornell
  
Managing Director of Goldman, Sachs & Co.
     
Sanjeev K. Mehra
  
Managing Director of Goldman, Sachs & Co.
     
Muneer A. Satter
  
Managing Director of Goldman, Sachs & Co.
     
Joe DiSabato
  
Managing Director of Goldman, Sachs & Co.
     
Adrian M. Jones
  
Managing Director of Goldman, Sachs & Co.
     
Ben I. Adler
  
Managing Director of Goldman, Sachs & Co.
     
Elizabeth C. Fascitelli
  
Managing Director of Goldman, Sachs & Co.
     
Michael E. Koester
  
Managing Director of Goldman, Sachs & Co.
     
Kenneth A. Pontarelli
  
Managing Director of Goldman, Sachs & Co.
     
Ankur A. Sahu
  
Managing Director of Goldman Sachs (Japan) L.L.C.
     
Andrew E. Wolff
  
Managing Director of Goldman Sachs (Asia) L.L.C.
     
Sarah E. Smith
  
Managing Director of Goldman, Sachs & Co.
     
Robert R. Gheewalla
  
Managing Director of Goldman, Sachs International

 
Page 40 of 58
 

Hughes B. Lepic
  
Managing Director of Goldman, Sachs International
     
Gerald J. Cardinale
  
Managing Director of Goldman, Sachs & Co.
     
Thomas G. Connolly
  
Managing Director of Goldman, Sachs & Co.
     
Martin A Hintze
  
Managing Director of Goldman, Sachs International
     
Sanggyun Ahn
  
Managing Director of Goldman Sachs (Asia) L.L.C.
     
Shigeki Kiritani
  
Managing Director of Goldman Sachs (Japan) L.L.C.


 
Page 41 of 58
 

CUSIP No. 629484106

SCHEDULE II-F

The name, position and present principal occupation of each director and executive officer of ProSight Equity Management Inc., which is the managing member of ProSight Investment LLC and ProSight Parallel Investment LLC, are set forth below.

The business address for each director and executive officer listed below is c/o Goldman, Sachs & Co., 200 West Street, New York, New York 10282, except as follows: the business address of Joseph J. Beneducci and Lawrence T. Hannon is 3562 Round Barn Cir., Ste. 200, Santa Rosa, CA 95403.

All members listed below are United States citizens, except as follows: Sumit Rajpal is a citizen of India and Anthony Arnold is a citizen of the United Kingdom.

Name
  
Position
  
Present Principal Occupation
         
Sumit Rajpal
  
President & Director
  
Managing Director of Goldman, Sachs & Co.
         
Anthony Arnold
  
Vice President & Director
  
Vice President of Goldman, Sachs & Co.
         
Richard A. Friedman
  
Director
  
Managing Director of Goldman, Sachs & Co.
         
Henry Cornell
  
Director
  
Managing Director of Goldman, Sachs & Co.
         
Joseph J. Beneducci
  
Director
  
Chief Executive Officer, ProSight Specialty Insurance Group, Inc.
         
Lawrence T. Hannon
  
Director
  
Chief Sales & Marketing Officer, ProSight Specialty Insurance Group, Inc.

 
Page 42 of 58
 

CUSIP No. 629484106

SCHEDULE II-G

The name, position and present principal occupation of each director and executive officer of ProSight Specialty Insurance Group, Inc. are set forth below.

The business address for all the directors and executive officers listed below is c/o Goldman, Sachs & Co., 200 West Street, New York, New York 10282, except as follows:  (i) the business address of Joseph J. Beneducci is 3562 Round Barn Cir., Ste. 200, Santa Rosa, CA 95403, (ii) the business address of Richard P. Schifter, Steven W. Carlsen and Jonathan Garfinkel is c/o TPG Capital, L.P., 301 Commerce Street, Suite 3300, Fort Worth, Texas 76102, (iii) the business address of Clement S. Dwyer is URSA Advisors Inc., 155 Fleet Street, Portsmouth, NH 03801 and (iv) the business address of Bruce W. Schnitzer is Wand Partners, Inc., 489 Fifth Avenue, New York, NY 10017.

All directors and executive officers listed below are United States citizens, except as follows: Sumit Rajpal is a citizen of India and Anthony Arnold is a citizen of the United Kingdom.

Name
  
Position
  
Present Principal Occupation
         
Henry Cornell
  
President & Director
  
Managing Director of Goldman, Sachs & Co.
         
Richard A. Friedman
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Sumit Rajpal
  
Vice President & Director
  
Managing Director of Goldman, Sachs & Co.
         
Anthony Arnold
  
Vice President & Director
  
Vice President of Goldman, Sachs & Co.
         
John E. Bowman
  
Treasurer & Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Laurie E. Schmidt
  
Vice President
  
Vice President of Goldman, Sachs & Co.
         
Christine Vollertsen
  
Vice President
  
Vice President of Goldman, Sachs & Co.
         
Mitchell S. Weiss
  
Vice President
  
Vice President of Goldman, Sachs & Co.
         
Jason Levesque
  
Vice President
  
Vice President of Goldman, Sachs & Co.
         
Richard P. Schifter
  
Vice President & Director
  
Managing Partner of TPG Capital, L.P.
         
Steven W. Carlsen
  
Vice President & Director
  
President, Shadowbrook Advising, Inc.
         
Jonathan Garfinkel
  
Vice President & Director
  
Principal, TPG Capital, L.P.
         
Joseph J. Beneducci
  
Director
  
Chief Executive Officer, ProSight Specialty Insurance Group, Inc.
         
Clement S. Dwyer
  
Director
  
President & Managing Member, URSA Advisors Inc.
         
Bruce W. Schnitzer
  
Director
  
Chairman and Managing Director, Wand Partners, Inc.

 
Page 43 of 58
 

CUSIP No. 629484106

SCHEDULE II-H

The name, position and present principal occupation of each director and executive officer of ProSight Specialty Insurance Holdings, Inc. are set forth below.

The business address for all the executive officers listed below is c/o Goldman, Sachs & Co., 200 West Street, New York, New York 10282, except as follows: (i) the business address of Joseph J. Beneducci, Lawrence T. Hannon and Robert W. Bailey is 3562 Round Barn Cir., Ste. 200, Santa Rosa, CA 95403, (ii) the business address of Richard P. Schifter, Steven W. Carlsen and Jonathan Garfinkel is c/o TPG Capital, L.P., 301 Commerce Street, Suite 3300, Fort Worth, Texas 76102, (iii) the business address of Clement S. Dwyer is URSA Advisors Inc., 155 Fleet Street, Portsmouth, NH 03801 and (iv) the business address of Bruce W. Schnitzer is Wand Partners, Inc., 489 Fifth Avenue, New York, NY 10017.

All members listed below are United States citizens, except as follows: Sumit Rajpal is a citizen of India and Anthony Arnold is a citizen of the United Kingdom.

Name
  
Position
  
Present Principal Occupation
         
Joseph J. Beneducci
  
Co-President, Chief Executive Officer, Director
  
Chief Executive Officer, ProSight Specialty Insurance Group, Inc.
         
Lawrence T. Hannon
  
Chief Sales & Marketing Officer
  
Chief Sales & Marketing Officer, ProSight Specialty Insurance Group, Inc.
         
Robert W. Bailey
  
Chief Underwriting Officer
  
Chief Underwriter and Risk Officer, ProSight Specialty Insurance Group, Inc.
         
Henry Cornell
  
Co-President & Director
  
Managing Director of Goldman, Sachs & Co.
         
Richard A. Friedman
  
Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Sumit Rajpal
  
Vice President & Director
  
Managing Director of Goldman, Sachs & Co.
         
Anthony Arnold
  
Vice President & Director
  
Vice President of Goldman, Sachs & Co.
         
John E. Bowman
  
Treasurer & Vice President
  
Managing Director of Goldman, Sachs & Co.
         
Laurie E. Schmidt
  
Vice President
  
Vice President of Goldman, Sachs & Co.
         
Christine Vollertsen
  
Vice President
  
Vice President of Goldman, Sachs & Co.
         
Mitchell S. Weiss
  
Vice President
  
Vice President of Goldman, Sachs & Co.
         
Jason Levesque
  
Vice President
  
Vice President of Goldman, Sachs & Co.
         
Richard P. Schifter
  
Vice President & Director
  
Managing Partner of TPG Capital, L.P.
         
Steven W. Carlsen
  
Vice President & Director
  
President of Shadowbrook Advising, Inc.
         
Jonathan Garfinkel
  
Vice President & Director
  
Principal of TPG Capital, L.P.
         
Clement S. Dwyer
  
Director
  
President & Managing Member of URSA Advisors Inc.

 
Page 44 of 58
 


Bruce W. Schnitzer
  
Director
  
Chairman and Managing Director of Wand Partners, Inc.

 
Page 45 of 58
 

CUSIP No. 629484106

SCHEDULE II-I

The name, position and present principal occupation of each director and executive officer of PSI Merger Sub Inc. is set forth below.

The business address for each director and executive officer listed below is c/o Goldman, Sachs & Co., 200 West Street, New York, New York 10282, except as follows: (i) the business address of Joseph J. Beneducci, is 3562 Round Barn Cir., Ste. 200, Santa Rosa, CA 95403, (ii) the business address of Richard P. Schifter, Steven W. Carlsen and Jonathan Garfinkel is c/o TPG Capital, L.P., 301 Commerce Street, Suite 3300, Fort Worth, Texas 76102, (iii) the business address of Clement S. Dwyer is URSA Advisors Inc., 155 Fleet Street, Portsmouth, NH 03801 and (iv) the business address of Bruce W. Schnitzer is Wand Partners, Inc., 489 Fifth Avenue, New York, NY 10017.

All members listed below are United States citizens, except as follows: Sumit Rajpal is a citizen of India and Anthony Arnold is a citizen of the United Kingdom.

Name
  
Position
  
Present Principal Occupation
         
Henry Cornell
  
President & Director
  
Managing Director of Goldman, Sachs & Co.
         
Sumit Rajpal
  
Vice President & Director
  
Managing Director of Goldman, Sachs & Co.
         
Anthony Arnold
  
Vice President, Secretary & Director
  
Vice President of Goldman, Sachs & Co.
         
Richard P. Schifter
  
Vice President & Director
  
Partner of TPG Capital, L.P.
         
Steven W. Carlsen
  
Vice President & Director
  
President of Shadowbrook Advising, Inc.
         
Jonathan Garfinkel
  
Vice President & Director
  
Principal of TPG Capital, L.P.
         
Joseph J. Beneducci
  
Director
  
Chief Executive Officer of ProSight Specialty Insurance Group, Inc.
         
Clement S. Dwyer
  
Director
  
President & Managing Member of URSA Advisors Inc.
         
Bruce W. Schnitzer
  
Director
  
Chairman and Managing Director of Wand Partners, Inc.

 
Page 46 of 58
 

CUSIP No. 629484106

SCHEDULE III

The names of the directors and the names and titles of the executive officers of TPG Advisors VI and their principal occupations are set forth below. Each individual is a United States citizen.
 
Name
  
Position
  
Address
David Bonderman
  
Chairman of the Board, President
  
301 Commerce Street
Suite 3300
Fort Worth, TX 76102
James G. Coulter
  
Director, Vice President
  
301 Commerce Street
Suite 3300
Fort Worth, TX 76102
John E. Viola
  
Vice President, Treasurer
  
301 Commerce Street
Suite 3300
Fort Worth, TX 76102
Ronald Cami
  
Vice President, Secretary
  
301 Commerce Street
Suite 3300
Fort Worth, TX 76102
Jonathan J. Coslet
  
Vice President
  
301 Commerce Street
Suite 3300
Fort Worth, TX 76102
David Reintjes
  
Chief Compliance Officer,
Assistant Secretary
  
301 Commerce Street
Suite 3300
Fort Worth, TX 76102
G. Douglas Puckett
  
Assistant Treasurer
  
301 Commerce Street
Suite 3300
Fort Worth, TX 76102
Steven A. Willmann
  
Assistant Treasurer
  
301 Commerce Street
Suite 3300
Fort Worth, TX 76102

 
Page 47 of 58
 

CUSIP No. 629484106


SCHEDULE IV

In May 2006, the Securities and Exchange Commission (“SEC”) alleged that fourteen investment banking firms, including Goldman, Sachs & Co. (“Goldman Sachs”), violated Section 17(a)(2) of the Securities Act of 1933, by engaging in one or more practices relating to auctions of auction rate securities during the period from January 1, 2003 through June 30, 2004 as described in the cease-and-desist order entered by the SEC. Goldman Sachs has agreed to provide certain disclosures about its material auction practices and procedures to auction participants and to certify to the SEC that it has implemented certain procedures relating to the auction process. As part of a multi-firm settlement, Goldman Sachs submitted an Offer of Settlement which was accepted by the SEC on May 31, 2006. Without admitting or denying the a llegations, Goldman Sachs consented to a censure and cease-and-desist order and payment of $1,500,000
civil money penalty.

On July 15, 2010, Goldman Sachs agreed with the SEC to settle the SEC’s pending case against Goldman Sachs relating to disclosures in the ABACUS 2007-AC1 CDO offering. Goldman Sachs consented to the entry of a final judgment by the court, which has approved the settlement, providing for the payment of penalties and disgorgement totaling $550 million, Goldman Sachs’s implementation of certain remedial measures focused on offerings of mortgage-related securities and an injunction against violating Section 17(a) of the Securities Act of 1933 in the offer or sale of any security. The conduct of Goldman Sachs alleged in the SEC’s complaint involved an offering of a synthetic collateralized debt obligation, which referenced a portfolio of synthetic residential mortgage-backed securities, by Goldman Sachs or its affiliates to q ualified institutional buyers in reliance on the exemption from registration under the Securities Act of 1933 provided by Rule 144A and to non-U.S. persons in reliance on the safe harbor from registration provided by Regulation S. Specifically, the complaint alleged that the offering materials, in describing the Portfolio Selection Agent for the portfolio of synthetic residential mortgage-backed securities, should have disclosed that the hedge fund assuming the short side of the transaction had played a role in the selection process. In its consent to the judgment, Goldman Sachs acknowledged that it was a mistake not to disclose the role of the hedge fund.

 
Page 48 of 58
 

CUSIP No. 629484106

SCHEDULE V

Listed below are the transactions effected by the Reporting Persons in the Issuer’s Common Stock in the past 60 days, all of which were effected in the ordinary course of business of Goldman, Sachs & Co. or another wholly-owned broker or dealer subsidiary of The Goldman Sachs Group, Inc. in ordinary course trading activities.  The transactions were effected on the New York Stock Exchange or in the over-the-counter market.
 
 
Purchase (P)/ Sale (S)
  
Shares
  
Price
  
Trade Date
  
Settlement Date
S
  
1
  
20.97
  
5/14/2010
  
5/19/2010
P
  
7
  
20.98
  
5/14/2010
  
5/19/2010
S
  
7
  
20.98
  
5/14/2010
  
5/19/2010
P
  
7
  
20.98
  
5/14/2010
  
5/19/2010
S
  
7
  
20.98
  
5/14/2010
  
5/19/2010
P
  
7
  
20.98
  
5/14/2010
  
5/19/2010
S
  
7
  
20.98
  
5/14/2010
  
5/19/2010
P
  
23
  
21.08
  
5/17/2010
  
5/20/2010
S
  
80
  
21.33
  
5/17/2010
  
5/20/2010
S
  
39
  
21.33
  
5/17/2010
  
5/20/2010
P
  
39
  
21.33
  
5/17/2010
  
5/20/2010
S
  
38
  
21.33
  
5/17/2010
  
5/20/2010
P
  
38
  
21.33
  
5/17/2010
  
5/20/2010
S
  
41
  
21.33
  
5/17/2010
  
5/20/2010
P
  
41
  
21.33
  
5/17/2010
  
5/20/2010
S
  
38
  
21.33
  
5/17/2010
  
5/20/2010
P
  
38
  
21.33
  
5/17/2010
  
5/20/2010
S
  
76
  
21.33
  
5/17/2010
  
5/20/2010
P
  
76
  
21.33
  
5/17/2010
  
5/20/2010
S
  
76
  
21.33
  
5/17/2010
  
5/20/2010
P
  
76
  
21.33
  
5/17/2010
  
5/20/2010
S
  
1
  
21.41
  
5/18/2010
  
5/21/2010
S
  
69
  
21.3
  
5/18/2010
  
5/21/2010
S
  
55
  
21.07
  
5/18/2010
  
5/21/2010
P
  
97
  
20.72
  
5/19/2010
  
5/24/2010
S
  
46
  
20.72
  
5/19/2010
  
5/24/2010
S
  
10
  
20.72
  
5/19/2010
  
5/24/2010
P
  
10
  
20.72
  
5/19/2010
  
5/24/2010
S
  
10
  
20.72
  
5/19/2010
  
5/24/2010
P
  
10
  
20.72
  
5/19/2010
  
5/24/2010
S
  
10
  
20.72
  
5/19/2010
  
5/24/2010
P
  
10
  
20.72
  
5/19/2010
  
5/24/2010
S
  
700
  
20.72
  
5/19/2010
  
5/24/2010
P
  
600
  
20.72
  
5/19/2010
  
5/24/2010
P
  
12
  
20.72
  
5/20/2010
  
5/25/2010
S
  
12
  
20.72
  
5/20/2010
  
5/25/2010
S
  
12
  
20.72
  
5/20/2010
  
5/25/2010
P
  
12
  
20.72
  
5/20/2010
  
5/25/2010
S
  
10
  
20.39
  
5/20/2010
  
5/25/2010
P
  
8
  
20.4
  
5/20/2010
  
5/25/2010
P
  
1
  
20.11
  
5/20/2010
  
5/25/2010
P
  
94
  
19.63
  
5/20/2010
  
5/25/2010
S
  
1
  
19.63
  
5/20/2010
  
5/25/2010
P
  
1
  
19.63
  
5/20/2010
  
5/25/2010
S
  
6
  
19.63
  
5/20/2010
  
5/25/2010
P
  
6
  
19.63
  
5/20/2010
  
5/25/2010
S
  
74
  
19.63
  
5/20/2010
  
5/25/2010
P
  
74
  
19.63
  
5/20/2010
  
5/25/2010
S
  
98
  
19.63
  
5/20/2010
  
5/25/2010
P
  
98
  
19.63
  
5/20/2010
  
5/25/2010
S
  
75
  
19.63
  
5/20/2010
  
5/25/2010
P
  
75
  
19.63
  
5/20/2010
  
5/25/2010
S
  
99
  
19.63
  
5/20/2010
  
5/25/2010
P
  
99
  
19.63
  
5/20/2010
  
5/25/2010
S
  
1
  
19.63
  
5/20/2010
  
5/25/2010
P
  
1
  
19.63
  
5/20/2010
  
5/25/2010
S
  
1
  
19.63
  
5/20/2010
  
5/25/2010
P
  
1
  
19.63
  
5/20/2010
  
5/25/2010
S
  
74
  
19.63
  
5/20/2010
  
5/25/2010
P
  
74
  
19.63
  
5/20/2010
  
5/25/2010
P
  
752
  
19.63
  
5/20/2010
  
5/25/2010
P
  
200
  
19.63
  
5/20/2010
  
5/25/2010
P
  
294
  
19.63
  
5/20/2010
  
5/25/2010
S
  
294
  
19.63
  
5/20/2010
  
5/25/2010
P
  
105
  
19.63
  
5/20/2010
  
5/25/2010
S
  
105
  
19.63
  
5/20/2010
  
5/25/2010
S
  
81
  
19.18
  
5/21/2010
  
5/26/2010
S
  
11
  
18.995
  
5/21/2010
  
5/26/2010

 
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S
  
1
  
19.11
  
5/21/2010
  
5/26/2010
S
  
74
  
19.11
  
5/21/2010
  
5/26/2010
S
  
1
  
19.05
  
5/21/2010
  
5/26/2010
S
  
5
  
19.49
  
5/21/2010
  
5/26/2010
S
  
5
  
19.49
  
5/21/2010
  
5/26/2010
P
  
5
  
19.49
  
5/21/2010
  
5/26/2010
S
  
5
  
19.49
  
5/21/2010
  
5/26/2010
P
  
5
  
19.49
  
5/21/2010
  
5/26/2010
P
  
100
  
19.18
  
5/21/2010
  
5/26/2010
S
  
500
  
19.18
  
5/21/2010
  
5/26/2010
P
  
100
  
19.18
  
5/21/2010
  
5/26/2010
S
  
189
  
18.77
  
5/21/2010
  
5/26/2010
S
  
200
  
19.44
  
5/21/2010
  
5/26/2010
S
  
100
  
19.44
  
5/21/2010
  
5/26/2010
P
  
300
  
19.44
  
5/21/2010
  
5/24/2010
S
  
2
  
19.25
  
5/24/2010
  
5/27/2010
P
  
30
  
18.75
  
5/24/2010
  
5/27/2010
P
  
21
  
18.75
  
5/24/2010
  
5/27/2010
S
  
21
  
18.75
  
5/24/2010
  
5/27/2010
P
  
57
  
18.75
  
5/24/2010
  
5/27/2010
S
  
57
  
18.75
  
5/24/2010
  
5/27/2010
P
  
8
  
18.75
  
5/24/2010
  
5/27/2010
S
  
8
  
18.75
  
5/24/2010
  
5/27/2010
P
  
22
  
18.75
  
5/24/2010
  
5/27/2010
S
  
22
  
18.75
  
5/24/2010
  
5/27/2010
P
  
78
  
18.75
  
5/24/2010
  
5/27/2010
S
  
78
  
18.75
  
5/24/2010
  
5/27/2010
P
  
78
  
18.75
  
5/24/2010
  
5/27/2010
S
  
78
  
18.75
  
5/24/2010
  
5/27/2010
P
  
11
  
18.75
  
5/24/2010
  
5/27/2010
S
  
11
  
18.75
  
5/24/2010
  
5/27/2010
P
  
30
  
18.75
  
5/24/2010
  
5/27/2010
S
  
30
  
18.75
  
5/24/2010
  
5/27/2010
P
  
550
  
18.75
  
5/24/2010
  
5/27/2010
P
  
11
  
18.75
  
5/24/2010
  
5/27/2010
S
  
11
  
18.75
  
5/24/2010
  
5/27/2010
P
  
11
  
18.75
  
5/25/2010
  
5/28/2010
S
  
11
  
18.75
  
5/25/2010
  
5/28/2010
S
  
11
  
18.75
  
5/25/2010
  
5/28/2010
P
  
11
  
18.75
  
5/25/2010
  
5/28/2010
P
  
78
  
18.37
  
5/25/2010
  
5/28/2010
P
  
11
  
18.37
  
5/25/2010
  
5/28/2010
P
  
8
  
18.35
  
5/25/2010
  
5/28/2010
P
  
2
  
18.34
  
5/25/2010
  
5/28/2010
S
  
30
  
18.67
  
5/25/2010
  
5/28/2010
P
  
30
  
18.67
  
5/25/2010
  
5/28/2010
P
  
38
  
18.67
  
5/25/2010
  
5/28/2010
S
  
38
  
18.67
  
5/25/2010
  
5/28/2010
P
  
8
  
18.67
  
5/25/2010
  
5/28/2010
S
  
8
  
18.67
  
5/25/2010
  
5/28/2010
S
  
30
  
18.67
  
5/25/2010
  
5/28/2010
P
  
30
  
18.67
  
5/25/2010
  
5/28/2010
P
  
38
  
18.67
  
5/25/2010
  
5/28/2010
S
  
38
  
18.67
  
5/25/2010
  
5/28/2010
P
  
8
  
18.86
  
5/26/2010
  
6/1/2010
P
  
24
  
19.14
  
5/26/2010
  
6/1/2010
P
  
24
  
19.07
  
5/26/2010
  
6/1/2010
S
  
24
  
19.07
  
5/26/2010
  
6/1/2010
P
  
9
  
19.82
  
5/27/2010
  
6/2/2010
S
  
100
  
19.46
  
5/27/2010
  
6/2/2010
P
  
22
  
20.35
  
5/28/2010
  
6/3/2010
S
  
28
  
20.35
  
5/28/2010
  
6/3/2010
P
  
51
  
20.35
  
5/28/2010
  
6/3/2010
S
  
74
  
20.35
  
5/28/2010
  
6/3/2010
S
  
24
  
20.35
  
5/28/2010
  
6/3/2010
P
  
24
  
20.35
  
5/28/2010
  
6/3/2010
P
  
2
  
20.35
  
5/28/2010
  
6/3/2010
S
  
2
  
20.35
  
5/28/2010
  
6/3/2010
S
  
49
  
20.35
  
5/28/2010
  
6/3/2010
P
  
49
  
20.35
  
5/28/2010
  
6/3/2010

 
Page 50 of 58
 

S
  
46
  
20.35
  
5/28/2010
  
6/3/2010
P
  
46
  
20.35
  
5/28/2010
  
6/3/2010
S
  
23
  
20.35
  
5/28/2010
  
6/3/2010
P
  
23
  
20.35
  
5/28/2010
  
6/3/2010
P
  
19
  
20.35
  
5/28/2010
  
6/3/2010
S
  
19
  
20.35
  
5/28/2010
  
6/3/2010
S
  
48
  
20.35
  
5/28/2010
  
6/3/2010
P
  
48
  
20.35
  
5/28/2010
  
6/3/2010
S
  
1
  
20.35
  
5/28/2010
  
6/3/2010
P
  
1
  
20.35
  
5/28/2010
  
6/3/2010
S
  
47
  
20.35
  
5/28/2010
  
6/3/2010
P
  
47
  
20.35
  
5/28/2010
  
6/3/2010
S
  
100
  
20.33
  
5/28/2010
  
6/3/2010
S
  
100
  
20.32
  
5/28/2010
  
6/3/2010
S
  
100
  
20.33
  
5/28/2010
  
6/3/2010
S
  
700
  
20.35
  
5/28/2010
  
6/3/2010
P
  
100
  
20.35
  
5/28/2010
  
6/3/2010
P
  
200
  
20.35
  
5/28/2010
  
6/3/2010
P
  
100
  
20.35
  
5/28/2010
  
6/3/2010
P
  
100
  
20.35
  
5/28/2010
  
6/3/2010
P
  
300
  
20.35
  
5/28/2010
  
6/3/2010
P
  
41
  
20.35
  
6/1/2010
  
6/4/2010
S
  
41
  
20.35
  
6/1/2010
  
6/4/2010
S
  
41
  
20.35
  
6/1/2010
  
6/4/2010
P
  
41
  
20.35
  
6/1/2010
  
6/4/2010
S
  
6
  
20.09
  
6/1/2010
  
6/4/2010
S
  
4
  
20.1
  
6/1/2010
  
6/4/2010
S
  
1
  
19.67
  
6/1/2010
  
6/4/2010
S
  
1
  
19.73
  
6/1/2010
  
6/4/2010
S
  
30
  
19.92
  
6/1/2010
  
6/4/2010
S
  
7
  
19.92
  
6/1/2010
  
6/4/2010
S
  
7
  
19.81
  
6/1/2010
  
6/4/2010
S
  
43
  
19.83
  
6/1/2010
  
6/4/2010
S
  
6
  
19.81
  
6/1/2010
  
6/4/2010
S
  
43
  
19.85
  
6/1/2010
  
6/4/2010
S
  
30
  
19.81
  
6/1/2010
  
6/4/2010
S
  
50
  
19.82
  
6/1/2010
  
6/4/2010
S
  
29
  
19.82
  
6/1/2010
  
6/4/2010
P
  
29
  
19.82
  
6/1/2010
  
6/4/2010
P
  
2
  
19.82
  
6/1/2010
  
6/4/2010
S
  
2
  
19.82
  
6/1/2010
  
6/4/2010
S
  
36
  
19.82
  
6/1/2010
  
6/4/2010
P
  
36
  
19.82
  
6/1/2010
  
6/4/2010
S
  
6
  
19.82
  
6/1/2010
  
6/4/2010
P
  
6
  
19.82
  
6/1/2010
  
6/4/2010
S
  
704
  
19.82
  
6/1/2010
  
6/4/2010
P
  
275
  
19.82
  
6/1/2010
  
6/4/2010
S
  
100
  
19.82
  
6/1/2010
  
6/4/2010
S
  
119
  
19.82
  
6/1/2010
  
6/4/2010
P
  
119
  
19.82
  
6/1/2010
  
6/4/2010
S
  
6
  
20.05
  
6/2/2010
  
6/7/2010
S
  
1
  
20.05
  
6/2/2010
  
6/7/2010
P
  
24
  
20.19
  
6/2/2010
  
6/7/2010
S
  
19
  
19.9
  
6/2/2010
  
6/7/2010
P
  
54
  
19.88
  
6/2/2010
  
6/7/2010
P
  
4
  
19.82
  
6/2/2010
  
6/7/2010
S
  
4
  
19.82
  
6/2/2010
  
6/7/2010
S
  
4
  
19.82
  
6/2/2010
  
6/7/2010
P
  
4
  
19.82
  
6/2/2010
  
6/7/2010
P
  
2
  
20.1
  
6/2/2010
  
6/7/2010
P
  
1
  
20.11
  
6/2/2010
  
6/7/2010
P
  
20
  
20.11
  
6/2/2010
  
6/7/2010
P
  
20
  
20.11
  
6/2/2010
  
6/7/2010
S
  
20
  
20.11
  
6/2/2010
  
6/7/2010
P
  
208
  
20.11
  
6/2/2010
  
6/7/2010
P
  
19
  
20.11
  
6/2/2010
  
6/7/2010
S
  
19
  
20.11
  
6/2/2010
  
6/7/2010
S
  
1
  
20.11
  
6/2/2010
  
6/7/2010
P
  
1
  
20.11
  
6/2/2010
  
6/7/2010
P
  
100
  
20.55
  
6/2/2010
  
6/7/2010

 
Page 51 of 58
 

P
  
12
  
19.98
  
6/2/2010
  
6/7/2010
P
  
12
  
19.98
  
6/2/2010
  
6/7/2010
P
  
6
  
19.98
  
6/2/2010
  
6/7/2010
P
  
12
  
19.98
  
6/2/2010
  
6/7/2010
P
  
100
  
20.19
  
6/2/2010
  
6/7/2010
P
  
100
  
19.88
  
6/2/2010
  
6/7/2010
S
  
100
  
20
  
6/2/2010
  
6/7/2010
S
  
100
  
20.06
  
6/2/2010
  
6/7/2010
S
  
1
  
20.53
  
6/3/2010
  
6/8/2010
P
  
22
  
20.24
  
6/3/2010
  
6/8/2010
S
  
51
  
20.11
  
6/3/2010
  
6/8/2010
S
  
7
  
20.11
  
6/3/2010
  
6/8/2010
P
  
7
  
20.11
  
6/3/2010
  
6/8/2010
S
  
7
  
20.11
  
6/3/2010
  
6/8/2010
P
  
7
  
20.11
  
6/3/2010
  
6/8/2010
S
  
7
  
20.11
  
6/3/2010
  
6/8/2010
P
  
7
  
20.11
  
6/3/2010
  
6/8/2010
P
  
100
  
19.95
  
6/3/2010
  
6/7/2010
P
  
100
  
19.96
  
6/3/2010
  
6/7/2010
P
  
300
  
19.91
  
6/3/2010
  
6/7/2010
P
  
100
  
19.91
  
6/3/2010
  
6/7/2010
P
  
1
  
20.02
  
6/3/2010
  
6/7/2010
P
  
100
  
19.98
  
6/3/2010
  
6/7/2010
P
  
100
  
19.94
  
6/3/2010
  
6/7/2010
P
  
100
  
19.95
  
6/3/2010
  
6/7/2010
P
  
100
  
19.95
  
6/3/2010
  
6/7/2010
P
  
100
  
20
  
6/3/2010
  
6/7/2010
P
  
100
  
19.95
  
6/3/2010
  
6/7/2010
P
  
92
  
19.9
  
6/3/2010
  
6/7/2010
P
  
100
  
19.91
  
6/3/2010
  
6/7/2010
S
  
100
  
19.96
  
6/3/2010
  
6/8/2010
S
  
100
  
19.95
  
6/3/2010
  
6/8/2010
S
  
300
  
19.91
  
6/3/2010
  
6/8/2010
S
  
100
  
19.91
  
6/3/2010
  
6/8/2010
S
  
100
  
19.98
  
6/3/2010
  
6/8/2010
S
  
1
  
20.02
  
6/3/2010
  
6/8/2010
S
  
100
  
19.94
  
6/3/2010
  
6/8/2010
S
  
100
  
19.95
  
6/3/2010
  
6/8/2010
S
  
100
  
19.95
  
6/3/2010
  
6/8/2010
S
  
100
  
20
  
6/3/2010
  
6/8/2010
S
  
100
  
19.95
  
6/3/2010
  
6/8/2010
S
  
100
  
19.91
  
6/3/2010
  
6/8/2010
S
  
92
  
19.9
  
6/3/2010
  
6/8/2010
S
  
1
  
20.57
  
6/3/2010
  
6/8/2010
S
  
100
  
20.12
  
6/3/2010
  
6/8/2010
S
  
2
  
20.02
  
6/3/2010
  
6/8/2010
S
  
100
  
19.91
  
6/3/2010
  
6/8/2010
S
  
100
  
19.95
  
6/3/2010
  
6/8/2010
S
  
100
  
20.24
  
6/3/2010
  
6/8/2010
S
  
100
  
19.96
  
6/3/2010
  
6/8/2010
P
  
100
  
20.12
  
6/3/2010
  
6/7/2010
P
  
1
  
20.57
  
6/3/2010
  
6/7/2010
P
  
2
  
20.02
  
6/3/2010
  
6/7/2010
P
  
100
  
19.91
  
6/3/2010
  
6/7/2010
P
  
100
  
19.95
  
6/3/2010
  
6/7/2010
P
  
100
  
20.24
  
6/3/2010
  
6/7/2010
P
  
100
  
19.96
  
6/3/2010
  
6/7/2010
P
  
100
  
20.24
  
6/3/2010
  
6/8/2010
S
  
7
  
19.71
  
6/4/2010
  
6/9/2010
P
  
49
  
19.59
  
6/4/2010
  
6/9/2010
P
  
49
  
19.59
  
6/4/2010
  
6/9/2010
S
  
49
  
19.59
  
6/4/2010
  
6/9/2010
S
  
49
  
19.59
  
6/4/2010
  
6/9/2010
P
  
49
  
19.59
  
6/4/2010
  
6/9/2010
P
  
49
  
19.59
  
6/4/2010
  
6/9/2010
S
  
49
  
19.59
  
6/4/2010
  
6/9/2010
S
  
49
  
19.59
  
6/4/2010
  
6/9/2010
P
  
49
  
19.59
  
6/4/2010
  
6/9/2010
S
  
49
  
19.59
  
6/4/2010
  
6/9/2010
P
  
49
  
19.59
  
6/4/2010
  
6/9/2010

 
Page 52 of 58
 

S
  
49
  
19.29
  
6/7/2010
  
6/10/2010
S
  
9
  
19.07
  
6/7/2010
  
6/10/2010
S
  
77
  
19.3
  
6/7/2010
  
6/10/2010
S
  
53
  
19.2639
  
6/7/2010
  
6/10/2010
P
  
53
  
19.2639
  
6/7/2010
  
6/10/2010
S
  
80
  
19.2639
  
6/7/2010
  
6/10/2010
P
  
80
  
19.2639
  
6/7/2010
  
6/10/2010
S
  
100
  
19.25
  
6/7/2010
  
6/10/2010
S
  
100
  
19.25
  
6/7/2010
  
6/10/2010
S
  
144
  
19.2639
  
6/7/2010
  
6/10/2010
P
  
144
  
19.2639
  
6/7/2010
  
6/10/2010
S
  
144
  
19.3
  
6/7/2010
  
6/10/2010
P
  
144
  
19.3
  
6/7/2010
  
6/10/2010
S
  
133
  
19.3
  
6/7/2010
  
6/10/2010
P
  
133
  
19.3
  
6/7/2010
  
6/10/2010
P
  
60
  
19.3
  
6/8/2010
  
6/11/2010
S
  
60
  
19.3
  
6/8/2010
  
6/11/2010
P
  
60
  
19.45
  
6/8/2010
  
6/11/2010
P
  
3
  
19.78
  
6/8/2010
  
6/11/2010
P
  
15
  
20.04
  
6/8/2010
  
6/11/2010
P
  
83
  
20.04
  
6/8/2010
  
6/11/2010
P
  
15
  
20.04
  
6/8/2010
  
6/11/2010
S
  
15
  
20.04
  
6/8/2010
  
6/11/2010
P
  
37
  
20.04
  
6/8/2010
  
6/11/2010
S
  
37
  
20.04
  
6/8/2010
  
6/11/2010
P
  
46
  
20.04
  
6/8/2010
  
6/11/2010
S
  
46
  
20.04
  
6/8/2010
  
6/11/2010
P
  
38
  
20.04
  
6/8/2010
  
6/11/2010
S
  
38
  
20.04
  
6/8/2010
  
6/11/2010
P
  
61
  
20.04
  
6/8/2010
  
6/11/2010
S
  
61
  
20.04
  
6/8/2010
  
6/11/2010
P
  
1
  
20.04
  
6/8/2010
  
6/11/2010
S
  
1
  
20.04
  
6/8/2010
  
6/11/2010
P
  
1
  
20.41
  
6/9/2010
  
6/14/2010
P
  
30
  
20.44
  
6/9/2010
  
6/14/2010
P
  
1
  
20.38
  
6/9/2010
  
6/14/2010
P
  
1
  
20.45
  
6/10/2010
  
6/15/2010
S
  
69
  
20.95
  
6/10/2010
  
6/15/2010
S
  
69
  
20.95
  
6/10/2010
  
6/15/2010
P
  
69
  
20.95
  
6/10/2010
  
6/15/2010
S
  
69
  
20.95
  
6/10/2010
  
6/15/2010
P
  
69
  
20.95
  
6/10/2010
  
6/15/2010
P
  
5
  
20.5
  
6/11/2010
  
6/16/2010
S
  
2
  
20.41
  
6/11/2010
  
6/16/2010
S
  
2
  
20.41
  
6/11/2010
  
6/16/2010
P
  
2
  
20.41
  
6/11/2010
  
6/16/2010
P
  
22
  
20.41
  
6/11/2010
  
6/16/2010
S
  
22
  
20.41
  
6/11/2010
  
6/16/2010
P
  
22
  
20.41
  
6/11/2010
  
6/16/2010
S
  
22
  
20.41
  
6/11/2010
  
6/16/2010
P
  
22
  
20.41
  
6/11/2010
  
6/16/2010
S
  
22
  
20.41
  
6/11/2010
  
6/16/2010
P
  
22
  
20.41
  
6/11/2010
  
6/16/2010
S
  
22
  
20.41
  
6/11/2010
  
6/16/2010
P
  
22
  
20.57
  
6/14/2010
  
6/17/2010
P
  
17
  
20.43
  
6/14/2010
  
6/17/2010
S
  
17
  
20.43
  
6/14/2010
  
6/17/2010
P
  
17
  
20.43
  
6/14/2010
  
6/17/2010
S
  
17
  
20.43
  
6/14/2010
  
6/17/2010
P
  
34
  
20.43
  
6/14/2010
  
6/17/2010
S
  
34
  
20.43
  
6/14/2010
  
6/17/2010
P
  
34
  
20.43
  
6/14/2010
  
6/17/2010
S
  
34
  
20.43
  
6/14/2010
  
6/17/2010
P
  
1
  
20.5
  
6/15/2010
  
6/18/2010
P
  
33
  
20.54
  
6/15/2010
  
6/18/2010
S
  
24
  
22.07
  
6/15/2010
  
6/18/2010
P
  
41
  
22.07
  
6/15/2010
  
6/18/2010
S
  
24
  
22.07
  
6/15/2010
  
6/18/2010
P
  
24
  
22.07
  
6/15/2010
  
6/18/2010
P
  
24
  
22.07
  
6/15/2010
  
6/18/2010

 
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S
  
24
  
22.07
  
6/15/2010
  
6/18/2010
S
  
24
  
22.07
  
6/15/2010
  
6/18/2010
P
  
24
  
22.07
  
6/15/2010
  
6/18/2010
S
  
384
  
22.07
  
6/15/2010
  
6/18/2010
S
  
224
  
22.07
  
6/15/2010
  
6/18/2010
P
  
200
  
22.07
  
6/15/2010
  
6/18/2010
P
  
217
  
22.07
  
6/15/2010
  
6/18/2010
S
  
217
  
22.07
  
6/15/2010
  
6/18/2010
P
  
8
  
21.85
  
6/16/2010
  
6/21/2010
P
  
5
  
21.86
  
6/16/2010
  
6/21/2010
P
  
60
  
21.7
  
6/16/2010
  
6/21/2010
S
  
14
  
21.63
  
6/16/2010
  
6/21/2010
S
  
2
  
21.76
  
6/16/2010
  
6/21/2010
S
  
8
  
21.97
  
6/16/2010
  
6/21/2010
S
  
8
  
21.97
  
6/16/2010
  
6/21/2010
P
  
8
  
21.97
  
6/16/2010
  
6/21/2010
S
  
160
  
21.97
  
6/16/2010
  
6/21/2010
S
  
377
  
22.07
  
6/16/2010
  
6/21/2010
P
  
377
  
22.07
  
6/16/2010
  
6/21/2010
P
  
22
  
21.9
  
6/17/2010
  
6/22/2010
P
  
22
  
21.9
  
6/17/2010
  
6/22/2010
S
  
22
  
21.9
  
6/17/2010
  
6/22/2010
P
  
22
  
21.9
  
6/17/2010
  
6/22/2010
S
  
22
  
21.9
  
6/17/2010
  
6/22/2010
S
  
8
  
22
  
6/18/2010
  
6/23/2010
S
  
13
  
22
  
6/18/2010
  
6/23/2010
P
  
29
  
22.085
  
6/18/2010
  
6/23/2010
P
  
2
  
22
  
6/18/2010
  
6/23/2010
P
  
69
  
21.945
  
6/18/2010
  
6/23/2010
S
  
44
  
21.35
  
6/18/2010
  
6/23/2010
P
  
44
  
21.35
  
6/18/2010
  
6/23/2010
S
  
44
  
21.35
  
6/18/2010
  
6/23/2010
P
  
44
  
21.35
  
6/18/2010
  
6/23/2010
S
  
1000
  
22
  
6/18/2010
  
6/23/2010
S
  
900
  
22
  
6/18/2010
  
6/23/2010
S
  
200
  
22
  
6/18/2010
  
6/23/2010
S
  
200
  
22
  
6/18/2010
  
6/23/2010
S
  
200
  
22
  
6/18/2010
  
6/23/2010
S
  
100
  
22
  
6/18/2010
  
6/23/2010
S
  
200
  
22
  
6/18/2010
  
6/23/2010
S
  
300
  
22
  
6/18/2010
  
6/23/2010
P
  
100
  
21.91
  
6/18/2010
  
6/23/2010
P
  
100
  
21.945
  
6/18/2010
  
6/23/2010
P
  
44
  
21.55
  
6/18/2010
  
6/23/2010
S
  
44
  
21.74
  
6/21/2010
  
6/24/2010
P
  
13
  
21.35
  
6/21/2010
  
6/24/2010
S
  
13
  
21.35
  
6/21/2010
  
6/24/2010
P
  
2
  
21.35
  
6/21/2010
  
6/24/2010
S
  
2
  
21.35
  
6/21/2010
  
6/24/2010
S
  
15
  
21.35
  
6/21/2010
  
6/24/2010
P
  
15
  
21.35
  
6/21/2010
  
6/24/2010
S
  
33
  
20.98
  
6/21/2010
  
6/24/2010
P
  
73
  
20.28
  
6/21/2010
  
6/24/2010
P
  
73
  
20.28
  
6/21/2010
  
6/24/2010
S
  
73
  
20.28
  
6/21/2010
  
6/24/2010
P
  
73
  
20.28
  
6/21/2010
  
6/24/2010
S
  
73
  
20.28
  
6/21/2010
  
6/24/2010
S
  
5
  
21.25
  
6/21/2010
  
6/24/2010
S
  
3
  
20.29
  
6/22/2010
  
6/25/2010
P
  
2
  
20.43
  
6/22/2010
  
6/25/2010
S
  
19
  
20.23
  
6/22/2010
  
6/25/2010
S
  
100
  
20.21
  
6/22/2010
  
6/25/2010
S
  
100
  
20.27
  
6/22/2010
  
6/25/2010
S
  
7
  
20.22
  
6/23/2010
  
6/28/2010
P
  
7
  
20.22
  
6/23/2010
  
6/28/2010
S
  
1
  
20.22
  
6/23/2010
  
6/28/2010
P
  
93
  
20.23
  
6/23/2010
  
6/28/2010
P
  
3
  
20.03
  
6/23/2010
  
6/28/2010
S
  
54
  
19.98
  
6/23/2010
  
6/28/2010
P
  
54
  
19.98
  
6/23/2010
  
6/28/2010

 
Page 54 of 58
 

S
  
54
  
19.98
  
6/23/2010
  
6/28/2010
P
  
54
  
19.98
  
6/23/2010
  
6/28/2010
P
  
100
  
20.38
  
6/23/2010
  
6/28/2010
P
  
100
  
20.1
  
6/23/2010
  
6/28/2010
P
  
100
  
20.18
  
6/23/2010
  
6/28/2010
P
  
100
  
20.24
  
6/23/2010
  
6/28/2010
P
  
100
  
20.23
  
6/23/2010
  
6/28/2010
S
  
54
  
19.9
  
6/24/2010
  
6/29/2010
P
  
3
  
20.15
  
6/24/2010
  
6/29/2010
P
  
18
  
20.15
  
6/24/2010
  
6/29/2010
P
  
28
  
20.16
  
6/24/2010
  
6/29/2010
P
  
40
  
20.15
  
6/24/2010
  
6/29/2010
P
  
40
  
19.94
  
6/24/2010
  
6/29/2010
S
  
40
  
19.94
  
6/24/2010
  
6/29/2010
P
  
100
  
20.05
  
6/24/2010
  
6/29/2010
P
  
100
  
20.05
  
6/24/2010
  
6/29/2010
P
  
100
  
19.96
  
6/24/2010
  
6/29/2010
P
  
100
  
20.11
  
6/24/2010
  
6/29/2010
P
  
1
  
20.11
  
6/24/2010
  
6/29/2010
P
  
1
  
20.02
  
6/24/2010
  
6/29/2010
P
  
98
  
20.11
  
6/24/2010
  
6/29/2010
P
  
100
  
19.97
  
6/24/2010
  
6/29/2010
S
  
1
  
19.94
  
6/25/2010
  
6/30/2010
P
  
75
  
19.94
  
6/25/2010
  
6/30/2010
S
  
21
  
19.94
  
6/25/2010
  
6/30/2010
P
  
4
  
19.94
  
6/25/2010
  
6/30/2010
P
  
3
  
19.94
  
6/25/2010
  
6/30/2010
S
  
3
  
19.94
  
6/25/2010
  
6/30/2010
S
  
3
  
19.94
  
6/25/2010
  
6/30/2010
P
  
3
  
19.94
  
6/25/2010
  
6/30/2010
P
  
7
  
19.94
  
6/25/2010
  
6/30/2010
S
  
7
  
19.94
  
6/25/2010
  
6/30/2010
P
  
1
  
19.94
  
6/25/2010
  
6/30/2010
S
  
1
  
19.94
  
6/25/2010
  
6/30/2010
S
  
12
  
19.94
  
6/25/2010
  
6/30/2010
P
  
12
  
19.94
  
6/25/2010
  
6/30/2010
S
  
38
  
19.9378
  
6/25/2010
  
6/30/2010
P
  
63
  
19.94
  
6/25/2010
  
6/30/2010
S
  
63
  
19.94
  
6/25/2010
  
6/30/2010
S
  
95
  
19.96
  
6/25/2010
  
6/30/2010
S
  
1
  
19.96
  
6/25/2010
  
6/30/2010
S
  
3
  
19.96
  
6/25/2010
  
6/30/2010
S
  
1
  
19.96
  
6/25/2010
  
6/30/2010
P
  
700
  
19.94
  
6/25/2010
  
6/30/2010
S
  
1900
  
19.94
  
6/25/2010
  
6/30/2010
P
  
824
  
19.94
  
6/25/2010
  
6/30/2010
S
  
824
  
19.94
  
6/25/2010
  
6/30/2010
S
  
1
  
19.84
  
6/28/2010
  
7/1/2010
P
  
1
  
19.84
  
6/28/2010
  
7/1/2010
S
  
2
  
19.84
  
6/28/2010
  
7/1/2010
P
  
2
  
19.84
  
6/28/2010
  
7/1/2010
S
  
2
  
20
  
6/28/2010
  
7/1/2010
S
  
1
  
20.04
  
6/28/2010
  
7/1/2010
S
  
23
  
20.16
  
6/28/2010
  
7/1/2010
S
  
48
  
20.22
  
6/28/2010
  
7/1/2010
P
  
77
  
20.22
  
6/28/2010
  
7/1/2010
S
  
77
  
20.22
  
6/28/2010
  
7/1/2010
P
  
77
  
20.22
  
6/28/2010
  
7/1/2010
S
  
77
  
20.22
  
6/28/2010
  
7/1/2010
P
  
77
  
20.22
  
6/28/2010
  
7/1/2010
S
  
77
  
20.22
  
6/28/2010
  
7/1/2010
S
  
1
  
19.84
  
6/28/2010
  
7/1/2010
P
  
1
  
19.84
  
6/28/2010
  
7/1/2010
S
  
2
  
20.22
  
6/28/2010
  
7/1/2010
P
  
2
  
20.22
  
6/28/2010
  
7/1/2010
P
  
106
  
19.84
  
6/28/2010
  
7/1/2010
S
  
106
  
19.84
  
6/28/2010
  
7/1/2010
S
  
106
  
19.84
  
6/28/2010
  
7/1/2010
P
  
106
  
19.84
  
6/28/2010
  
7/1/2010
S
  
153
  
19.84
  
6/28/2010
  
7/1/2010

 
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P
  
153
  
19.84
  
6/28/2010
  
7/1/2010
P
  
120
  
20.28
  
6/28/2010
  
7/1/2010
P
  
126
  
20.1
  
6/28/2010
  
7/1/2010
S
  
126
  
20.1
  
6/28/2010
  
7/1/2010
S
  
126
  
20.1
  
6/28/2010
  
7/1/2010
P
  
126
  
20.1
  
6/28/2010
  
7/1/2010
P
  
77
  
19.925
  
6/29/2010
  
7/2/2010
S
  
26
  
19.62
  
6/29/2010
  
7/2/2010
P
  
2
  
19.39
  
6/30/2010
  
7/6/2010
P
  
61
  
19.29
  
6/30/2010
  
7/6/2010
P
  
100
  
19.39
  
6/30/2010
  
7/6/2010
P
  
200
  
19.29
  
6/30/2010
  
7/6/2010
P
  
261
  
19.29
  
6/30/2010
  
7/6/2010
S
  
261
  
19.29
  
6/30/2010
  
7/6/2010
S
  
102
  
19.29
  
6/30/2010
  
7/6/2010
S
  
33
  
19.45
  
7/1/2010
  
7/7/2010
P
  
2
  
19.29
  
7/1/2010
  
7/7/2010
S
  
2
  
19.29
  
7/1/2010
  
7/7/2010
S
  
2
  
19.29
  
7/1/2010
  
7/7/2010
P
  
2
  
19.29
  
7/1/2010
  
7/7/2010
S
  
61
  
19.53
  
7/1/2010
  
7/7/2010
S
  
61
  
19.53
  
7/1/2010
  
7/7/2010
P
  
61
  
19.53
  
7/1/2010
  
7/7/2010
P
  
10
  
19.53
  
7/2/2010
  
7/8/2010
S
  
10
  
19.53
  
7/2/2010
  
7/8/2010
S
  
10
  
19.53
  
7/2/2010
  
7/8/2010
P
  
10
  
19.53
  
7/2/2010
  
7/8/2010
P
  
5
  
19.7
  
7/2/2010
  
7/8/2010
S
  
20
  
19.66
  
7/2/2010
  
7/8/2010
P
  
3
  
19.66
  
7/6/2010
  
7/9/2010
S
  
3
  
19.66
  
7/6/2010
  
7/9/2010
S
  
3
  
19.66
  
7/6/2010
  
7/9/2010
P
  
3
  
19.66
  
7/6/2010
  
7/9/2010
S
  
2
  
20.32
  
7/6/2010
  
7/9/2010
P
  
85
  
18.88
  
7/6/2010
  
7/9/2010
P
  
6
  
18.94
  
7/6/2010
  
7/9/2010
P
  
1
  
18.94
  
7/6/2010
  
7/9/2010
S
  
39
  
18.87
  
7/6/2010
  
7/9/2010
S
  
11
  
18.87
  
7/6/2010
  
7/9/2010
P
  
11
  
18.87
  
7/6/2010
  
7/9/2010
S
  
11
  
18.87
  
7/6/2010
  
7/9/2010
S
  
11
  
18.87
  
7/6/2010
  
7/9/2010
P
  
11
  
18.87
  
7/6/2010
  
7/9/2010
S
  
5
  
18.87
  
7/6/2010
  
7/9/2010
P
  
5
  
18.87
  
7/6/2010
  
7/9/2010
S
  
5
  
18.87
  
7/6/2010
  
7/9/2010
P
  
5
  
18.87
  
7/6/2010
  
7/9/2010
P
  
200
  
18.87
  
7/6/2010
  
7/9/2010
S
  
100
  
20.35
  
7/6/2010
  
7/9/2010
S
  
100
  
19.78
  
7/6/2010
  
7/9/2010
P
  
100
  
18.96
  
7/6/2010
  
7/9/2010
P
  
100
  
18.88
  
7/6/2010
  
7/9/2010
P
  
12
  
18.91
  
7/6/2010
  
7/9/2010
P
  
88
  
18.91
  
7/6/2010
  
7/9/2010
P
  
100
  
18.93
  
7/6/2010
  
7/9/2010
S
  
600
  
18.87
  
7/6/2010
  
7/9/2010
P
  
474
  
18.914
  
7/6/2010
  
7/9/2010
S
  
474
  
18.914
  
7/6/2010
  
7/9/2010
S
  
5
  
18.87
  
7/7/2010
  
7/12/2010
P
  
40
  
19.21
  
7/7/2010
  
7/12/2010
P
  
31
  
20.75
  
7/7/2010
  
7/12/2010
S
  
31
  
20.75
  
7/7/2010
  
7/12/2010
P
  
31
  
20.75
  
7/7/2010
  
7/12/2010
P
  
38
  
20.75
  
7/7/2010
  
7/12/2010
S
  
38
  
20.75
  
7/7/2010
  
7/12/2010
P
  
44
  
20.75
  
7/7/2010
  
7/12/2010
S
  
44
  
20.75
  
7/7/2010
  
7/12/2010
P
  
76
  
20.75
  
7/7/2010
  
7/12/2010
S
  
76
  
20.75
  
7/7/2010
  
7/12/2010
P
  
86
  
20.75
  
7/7/2010
  
7/12/2010

 
Page 56 of 58
 

S
  
86
  
20.75
  
7/7/2010
  
7/12/2010
P
  
18
  
20.75
  
7/7/2010
  
7/12/2010
S
  
18
  
20.75
  
7/7/2010
  
7/12/2010
S
  
18
  
20.75
  
7/7/2010
  
7/12/2010
P
  
18
  
20.75
  
7/7/2010
  
7/12/2010
P
  
82
  
20.75
  
7/7/2010
  
7/12/2010
S
  
82
  
20.75
  
7/7/2010
  
7/12/2010
P
  
82
  
20.75
  
7/7/2010
  
7/12/2010
S
  
82
  
20.75
  
7/7/2010
  
7/12/2010
P
  
180
  
20.75
  
7/7/2010
  
7/12/2010
P
  
100
  
20.75
  
7/7/2010
  
7/12/2010
P
  
9
  
20.89
  
7/8/2010
  
7/13/2010
P
  
73
  
20.88
  
7/8/2010
  
7/13/2010
P
  
3
  
20.75
  
7/8/2010
  
7/13/2010
S
  
3
  
20.75
  
7/8/2010
  
7/13/2010
S
  
3
  
20.75
  
7/8/2010
  
7/13/2010
P
  
3
  
20.75
  
7/8/2010
  
7/13/2010
P
  
6
  
19.73
  
7/8/2010
  
7/13/2010
P
  
13
  
20.11
  
7/8/2010
  
7/13/2010
P
  
86
  
20.11
  
7/8/2010
  
7/13/2010
P
  
400
  
20.11
  
7/8/2010
  
7/13/2010
P
  
486
  
20.11
  
7/8/2010
  
7/13/2010
S
  
486
  
20.11
  
7/8/2010
  
7/13/2010
S
  
486
  
20.11
  
7/8/2010
  
7/13/2010
P
  
486
  
20.11
  
7/8/2010
  
7/13/2010
S
  
83
  
21.67
  
7/9/2010
  
7/14/2010
S
  
8
  
21.64
  
7/9/2010
  
7/14/2010
S
  
1
  
21.64
  
7/9/2010
  
7/14/2010
S
  
57
  
21.74
  
7/9/2010
  
7/14/2010
P
  
57
  
21.74
  
7/9/2010
  
7/14/2010
S
  
57
  
21.67
  
7/9/2010
  
7/14/2010
P
  
57
  
21.67
  
7/9/2010
  
7/14/2010
S
  
100
  
21.67
  
7/9/2010
  
7/14/2010
S
  
126
  
21.74
  
7/9/2010
  
7/14/2010
P
  
126
  
21.74
  
7/9/2010
  
7/14/2010
S
  
126
  
21.67
  
7/9/2010
  
7/14/2010
P
  
126
  
21.67
  
7/9/2010
  
7/14/2010
P
  
1
  
21.74
  
7/12/2010
  
7/15/2010
S
  
1
  
21.74
  
7/12/2010
  
7/15/2010
S
  
1
  
21.74
  
7/12/2010
  
7/15/2010
P
  
1
  
21.74
  
7/12/2010
  
7/15/2010
S
  
6
  
20.81
  
7/12/2010
  
7/15/2010
S
  
65
  
20.78
  
7/12/2010
  
7/15/2010
S
  
1
  
20.78
  
7/12/2010
  
7/15/2010
P
  
1
  
20.78
  
7/12/2010
  
7/15/2010
P
  
500
  
20.78
  
7/12/2010
  
7/15/2010
S
  
100
  
20.78
  
7/12/2010
  
7/15/2010
S
  
164
  
20.78
  
7/12/2010
  
7/15/2010
P
  
164
  
20.78
  
7/12/2010
  
7/15/2010
P
  
19
  
20.78
  
7/13/2010
  
7/16/2010
S
  
19
  
20.78
  
7/13/2010
  
7/16/2010
S
  
19
  
20.78
  
7/13/2010
  
7/16/2010
P
  
19
  
20.78
  
7/13/2010
  
7/16/2010
P
  
20
  
21.11
  
7/13/2010
  
7/16/2010
P
  
29
  
20.95
  
7/13/2010
  
7/16/2010
P
  
100
  
21.35
  
7/13/2010
  
7/16/2010
P
  
100
  
21.39
  
7/13/2010
  
7/16/2010
P
  
100
  
21.39
  
7/13/2010
  
7/16/2010
P
  
100
  
21.4
  
7/13/2010
  
7/16/2010
P
  
100
  
21.4
  
7/13/2010
  
7/16/2010
P
  
100
  
21.4
  
7/13/2010
  
7/16/2010
P
  
100
  
21.52
  
7/13/2010
  
7/16/2010
P
  
100
  
21.61
  
7/13/2010
  
7/16/2010
P
  
100
  
21.75
  
7/13/2010
  
7/16/2010
P
  
12
  
21.75
  
7/13/2010
  
7/16/2010
P
  
100
  
21.74
  
7/13/2010
  
7/16/2010
P
  
31
  
21.74
  
7/13/2010
  
7/16/2010
S
  
17
  
21.74
  
7/13/2010
  
7/16/2010
P
  
100
  
21.74
  
7/13/2010
  
7/16/2010
S
  
8
  
21.74
  
7/13/2010
  
7/16/2010

 
Page 57 of 58
 

S
  
17
  
21.74
  
7/13/2010
  
7/16/2010
P
  
17
  
21.74
  
7/13/2010
  
7/16/2010
S
  
8
  
21.74
  
7/13/2010
  
7/16/2010
P
  
8
  
21.74
  
7/13/2010
  
7/16/2010
S
  
2
  
21.74
  
7/13/2010
  
7/16/2010
P
  
2
  
21.74
  
7/13/2010
  
7/16/2010
P
  
2
  
21.74
  
7/13/2010
  
7/16/2010
S
  
2
  
21.74
  
7/13/2010
  
7/16/2010
S
  
17
  
21.74
  
7/13/2010
  
7/16/2010
P
  
17
  
21.74
  
7/13/2010
  
7/16/2010
P
  
7
  
21.48
  
7/14/2010
  
7/19/2010
P
  
15
  
25.32
  
7/15/2010
  
7/20/2010
S
  
200
  
25.26
  
7/15/2010
  
7/20/2010
S
  
300
  
25.26
  
7/15/2010
  
7/20/2010
S
  
100
  
25.26
  
7/15/2010
  
7/20/2010
S
  
100
  
25.25
  
7/15/2010
  
7/20/2010
S
  
100
  
25.26
  
7/15/2010
  
7/20/2010
S
  
1000
  
25.25
  
7/15/2010
  
7/20/2010
S
  
100
  
25.26
  
7/15/2010
  
7/20/2010
S
  
400
  
25.25
  
7/15/2010
  
7/20/2010
S
  
100
  
25.25
  
7/15/2010
  
7/20/2010
P
  
25000
  
25.25
  
7/15/2010
  
7/20/2010
S
  
100
  
25.25
  
7/15/2010
  
7/20/2010
S
  
400
  
25.25
  
7/15/2010
  
7/20/2010
S
  
100
  
25.25
  
7/15/2010
  
7/20/2010
S
  
300
  
25.25
  
7/15/2010
  
7/20/2010
S
  
700
  
25.25
  
7/15/2010
  
7/20/2010
S
  
200
  
25.25
  
7/15/2010
  
7/20/2010
S
  
100
  
25.25
  
7/15/2010
  
7/20/2010
S
  
300
  
25.25
  
7/15/2010
  
7/20/2010
S
  
2000
  
25.25
  
7/15/2010
  
7/20/2010
S
  
2000
  
25.25
  
7/15/2010
  
7/20/2010
S
  
1500
  
25.25
  
7/15/2010
  
7/20/2010
S
  
500
  
25.25
  
7/15/2010
  
7/20/2010
S
  
2000
  
25.25
  
7/15/2010
  
7/20/2010
S
  
1400
  
25.25
  
7/15/2010
  
7/20/2010
S
  
1500
  
25.25
  
7/15/2010
  
7/20/2010
S
  
2000
  
25.25
  
7/15/2010
  
7/20/2010
S
  
2000
  
25.25
  
7/15/2010
  
7/20/2010
S
  
1500
  
25.25
  
7/15/2010
  
7/20/2010
S
  
2000
  
25.25
  
7/15/2010
  
7/20/2010
S
  
200
  
25.26
  
7/15/2010
  
7/20/2010
S
  
200
  
25.26
  
7/15/2010
  
7/20/2010
S
  
200
  
25.25
  
7/15/2010
  
7/20/2010
S
  
900
  
25.25
  
7/15/2010
  
7/20/2010
S
  
500
  
25.25
  
7/15/2010
  
7/20/2010
S
  
1500
  
25.3
  
7/15/2010
  
7/20/2010
S
  
1000
  
25.3
  
7/15/2010
  
7/20/2010
P
  
1000
  
25.35
  
7/15/2010
  
7/20/2010
P
  
200
  
25.39
  
7/15/2010
  
7/20/2010
P
  
400
  
25.39
  
7/15/2010
  
7/20/2010
P
  
106
  
25.39
  
7/15/2010
  
7/20/2010
P
  
100
  
25.4
  
7/15/2010
  
7/20/2010
P
  
200
  
25.39
  
7/15/2010
  
7/20/2010
P
  
400
  
25.37
  
7/15/2010
  
7/20/2010
P
  
94
  
25.4
  
7/15/2010
  
7/20/2010
S
  
500
  
25.36
  
7/15/2010
  
7/20/2010
S
  
100
  
25.35
  
7/15/2010
  
7/20/2010
S
  
100
  
25.35
  
7/15/2010
  
7/20/2010
S
  
600
  
25.35
  
7/15/2010
  
7/20/2010
S
  
200
  
25.35
  
7/15/2010
  
7/20/2010

 
Page 58 of 58
 EX-24.1 2 ex24_1.htm EXHIBIT 24.1 Unassociated Document
Exhibit 24.1
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS that THE GOLDMAN SACHS GROUP, INC. (the "Company") does hereby make, constitute and appoint each Bruce A. Albert, Andrea DeMar, Yvette Kosic, Rachel Parrish, Kevin P. Treanor, Michael T. Seeley, and Anthony DeRose, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact po wer and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.

THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates.

IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of October __, 2008.


THE GOLDMAN SACHS GROUP, INC.
 
 
By: /s/ Gregory K. Palm  
Name: Gregory K. Palm
Title: Executive Vice President and General Counsel
 
 
EX-24.2 3 ex24_2.htm EXHIBIT 24.2 Unassociated Document
Exhibit 24.2
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS that GOLDMAN, SACHS & CO. (the "Company") does hereby make, constitute and appoint each of Bruce A. Albert, Andrea DeMar, Yvette Kosic, Rachel Parrish, Kevin P. Treanor, Michael T. Seeley, and Anthony DeRose, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact powe r and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.

THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates.

IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of October __, 2008.


GOLDMAN, SACHS & CO.

 
By: /s/ Gregory K. Palm  
Name: Gregory K. Palm
Title: Managing Director
 
 
EX-24.3 4 ex24_3.htm EXHIBIT 24.3 Unassociated Document
Exhibit 24.3
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS that GSCP VI ADVISORS, L.L.C. (the "Company") does hereby make, constitute and appoint each of Bruce A. Albert, Andrea Louro DeMar, Yvette Kosic, Rachel E. Parrish, Michael T. Seeley, and Kevin P. Treanor, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in it name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and au thority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.

THIS POWER OF ATTORNEY  shall  remain in full force and effect until either revoked  in  writing  by the  undersigned  or until  such time as the  person or persons to whom power of  attorney  has been  hereby  granted  cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates.

IN WITNESS  WHEREOF,  the undersigned has duly subscribed these presents as of April 1, 2008.


GSCP VI ADVISORS, L.L.C.

 
By: /s/ Christine Vollertsen  
Name: Christine Vollersten
Title: Vice President
 
 
EX-24.4 5 ex24_4.htm EXHIBIT 24.4 Unassociated Document
Exhibit 24.4
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS that GSCP VI OFFSHORE ADVISORS, L.L.C. (the "Company") does hereby make, constitute and appoint each of Bruce A. Albert, Andrea Louro DeMar, Yvette Kosic, Rachel E. Parrish, Michael T. Seeley, and Kevin P. Treanor, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in it name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact pow er and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.

THIS POWER OF ATTORNEY  shall  remain in full force and effect until either revoked  in  writing  by the  undersigned  or until  such time as the  person or persons to whom power of  attorney  has been  hereby  granted  cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates.

IN WITNESS  WHEREOF,  the undersigned has duly subscribed these presents as of April 1, 2008.


GSCP VI OFFSHORE ADVISORS, L.L.C.


By: /s/ Christine Vollertsen  
Name:   Christine Vollertsen
Title:  Vice President
 
 
EX-24.5 6 ex24_5.htm EXHIBIT 24.5 Unassociated Document
Exhibit 24.5
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS that GS ADVISORS VI, L.L.C. (the "Company") does hereby make, constitute and appoint each of Bruce A. Albert, Andrea Louro DeMar, Yvette Kosic, Rachel E. Parrish, Michael T. Seeley, and Kevin P. Treanor, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in it name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and auth ority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.

THIS POWER OF ATTORNEY  shall  remain in full force and effect until either revoked  in  writing  by the  undersigned  or until  such time as the  person or persons to whom power of  attorney  has been  hereby  granted  cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates.

IN WITNESS  WHEREOF,  the undersigned has duly subscribed these presents as of April 1, 2008.


GS ADVISORS VI, L.L.C.


By: /s/ Christine Vollertsen  
Name:   Christine Vollersten
Title:  Vice President
 
 
EX-24.6 7 ex24_6.htm EXHIBIT 24.6 Unassociated Document
Exhibit 24.6
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS that GOLDMAN, SACHS MANAGEMENT GP GMBH (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Yvette Kosic, Andrea Louro DeMar, Felicia J. Rector, Michael T. Seeley, and Kevin P. Treanor, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in it name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-f act power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.

THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates.

IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of December 27, 2007.


GOLDMAN, SACHS MANAGEMENT GP GMBH
 
 
By:/s/ John E. Bowman  
Name: John E. Bowman
Title: Managing Director
 
 
EX-24.7 8 ex24_7.htm EXHIBIT 24.7 Unassociated Document
Exhibit 24.7
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS that GS CAPITAL PARTNERS VI FUND, L.P. (the "Company") does hereby make, constitute and appoint each of Bruce A. Albert, Andrea Louro DeMar, Yvette Kosic, Rachel E. Parrish, Michael T. Seeley, and Kevin P. Treanor, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in it name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact pow er and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.

THIS POWER OF ATTORNEY  shall  remain in full force and effect until either revoked  in  writing  by the  undersigned  or until  such time as the  person or persons to whom power of  attorney  has been  hereby  granted  cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates.

IN WITNESS  WHEREOF,  the undersigned has duly subscribed these presents as of April 1, 2008.


GS CAPITAL PARTNERS VI FUND, L.P.,
By: GSCP VI Advisors, L.L.C., its general partner
 
 
By: /s/ Christine Vollertsen  
Name: Christine Vollertsen
Title: Vice President
 
 
EX-24.8 9 ex24_8.htm EXHIBIT 24.8 Unassociated Document
Exhibit 24.8
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS that GS CAPITAL PARTNERS VI OFFSHORE FUND, L.P. (the "Company") does hereby make, constitute and appoint each of Bruce A. Albert, Andrea Louro DeMar, Yvette Kosic, Rachel E. Parrish, Michael T. Seeley, and Kevin P. Treanor, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in it name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in - -fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.

THIS POWER OF ATTORNEY  shall  remain in full force and effect until either revoked  in  writing  by the  undersigned  or until  such time as the  person or persons to whom power of  attorney  has been  hereby  granted  cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates.

IN WITNESS  WHEREOF,  the undersigned has duly subscribed these presents as of April 1, 2008.


GS CAPITAL PARTNERS VI OFFSHORE FUND, L.P.,
By: GSCP VI Offshore Advisors, L.L.C., its general partner
 
 
By: /s/ Christine Vollertsen  
Name:   Christine Vollertsen
Title:  Vice President
 
 
EX-24.9 10 ex24_9.htm EXHIBIT 24.9 Unassociated Document
Exhibit 24.9
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS that GS CAPITAL PARTNERS VI PARALLEL, L.P. (the "Company") does hereby make, constitute and appoint each of Bruce A. Albert, Andrea Louro DeMar, Yvette Kosic, Rachel E. Parrish, Michael T. Seeley, and Kevin P. Treanor, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in it name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.

THIS POWER OF ATTORNEY  shall  remain in full force and effect until either revoked  in  writing  by the  undersigned  or until  such time as the  person or persons to whom power of  attorney  has been  hereby  granted  cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates.

IN WITNESS  WHEREOF,  the undersigned has duly subscribed these presents as of April 1, 2008.


GS CAPITAL PARTNERS VI PARALLEL, L.P.
BY:  GS Advisors VI, L.L.C., its general partner
 
 
By: /s/ Christine Vollertsen  
Name:   Christine Vollertsen
Title:  Vice President
 
 
EX-24.10 11 ex24_10.htm EXHIBIT 24.10 Unassociated Document
Exhibit 24.10
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS that GS CAPITAL PARTNERS VI GmbH & CO. KG (the "Company") does hereby make, constitute and appoint each of Bruce A. Albert, Andrea Louro DeMar, Yvette Kosic, Rachel E. Parrish, Michael T. Seeley, and Kevin P. Treanor, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in it name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-f act power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.

THIS POWER OF ATTORNEY  shall  remain in full force and effect until either revoked  in  writing  by the  undersigned  or until  such time as the  person or persons to whom power of  attorney  has been  hereby  granted  cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates.

IN WITNESS  WHEREOF,  the undersigned has duly subscribed these presents as of April 1, 2008.


GS CAPITAL PARTNERS VI GmbH & CO. KG
By:  GS Advisors VI, L.L.C., its managing limited partner
 
 
By: /s/ Christine Vollertsen  
Name:   Christine Vollertsen
Title:  Vice President
 
 
EX-24.11 12 ex24_11.htm EXHIBIT 24.11 ex24_11.htm
Exhibit 24.11
 


July 1, 2010


Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
 
This letter confirms that Ronald Cami and John E. Viola are authorized and designated to sign all securities related filings with the Securities and Exchange Commission, including Forms 3, 4 and 5, on my behalf.  This authorization and designation shall be valid for three years from the date of this letter.
 
 
Very truly yours,
   
   
 
/s/ David Bonderman
 
David Bonderman


301 Commerce Street, Suite 3300, Fort Worth, TX  76102
817-871-4000 T  ~  817-871-4088 F
 
 
EX-24.12 13 ex24_12.htm EXHIBIT 24.12 ex24_12.htm
Exhibit 24.12
 


July 1, 2010

Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
 
This letter confirms that Ronald Cami and John E. Viola are authorized and designated to sign all securities related filings with the Securities and Exchange Commission, including Forms 3, 4 and 5, on my behalf.  This authorization and designation shall be valid for three years from the date of this letter.
 
 
Very truly yours,
   
   
 
/s/ James G. Coulter
 
James G. Coulter


301 Commerce Street, Suite 3300, Fort Worth, TX  76102
817-871-4000 T  ~  817-871-4088 F
 
 
EX-99.1 14 ex99_1.htm EXHIBIT 99.1 ex99_1.htm
Exhibit 99.1
 
AGREEMENT OF JOINT FILING

This joint filing agreement (this “Agreement”) is made and entered into as of this 26th day of July 2010, by and among The Goldman Sachs Group Inc., Goldman, Sachs & Co., Goldman, Sachs Management GP GmbH, GS Capital Partners VI Fund, L.P., GS Capital Partners VI Offshore Fund, L.P., GS Capital Partners VI Parallel, L.P., GS Capital Partners VI GmbH & Co. KG, GSCP Advisors VI, L.L.C., GSCP VI Offshore Advisors, L.L.C., GS Advisors VI, L.L.C., ProSight Equity Management Inc., ProSight Parallel Investment LLC, ProSight Investment LLC, ProSight Specialty Insurance Group, Inc., ProSight Specialty Insurance Holdings, Inc., PSI Merger Sub Inc., TPG Advisors VI, Inc., David Bonderman and James G. Coulter.

The parties to this Agreement hereby agree to prepare jointly and file timely (and otherwise to deliver as appropriate) all filings on any Schedule 13D and any and all amendments thereto and any other document relating thereto (collectively, the “Filings”) required to be filed by them pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Each party to this Agreement further agrees and covenants to the other parties that it will fully cooperate with such other parties in the preparation and timely filing (and other delivery) of all such Filings.

This agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.
 
THE GOLDMAN SACHS GROUP, INC.
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GOLDMAN, SACHS & CO.
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GOLDMAN, SACHS MANAGEMENT GP GMBH
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GSCP VI ADVISORS, L.L.C.
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

 
Page 50 of 53
 

GSCP VI OFFSHORE ADVISORS, L.L.C.
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GS ADVISORS VI, L.L.C.
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GS CAPITAL PARTNERS VI FUND, L.P.
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GS CAPITAL PARTNERS VI OFFSHORE FUND, L.P.
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GS CAPITAL PARTNERS VI PARALLEL, L.P.
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

GS CAPITAL PARTNERS VI GMBH & CO. KG
 
 
 
By:  /s/ Yvette Kosic
 
Name: Yvette Kosic
 
Title:  Attorney-in-fact
 

 
Page 51 of 53
 


PROSIGHT EQUITY MANAGEMENT INC.
 
 
 
By:  /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title:  President
 

PROSIGHT INVESTMENT LLC
 
 
 
By: PROSIGHT EQUITY MANAGEMENT INC., its Managing Member
 
By:  /s/ Sumit Rajpal
  
Name: Sumit Rajpal
 
Title:  President
 

PROSIGHT PARALLEL INVESTMENT LLC
 
 
 
By: PROSIGHT EQUITY MANAGEMENT INC., its Managing Member
 
By:  /s/ Sumit Rajpal
  
Name:  Sumit Rajpal
 
Title: President
  

PROSIGHT SPECIALTY INSURANCE GROUP, INC.
 
 
 
By:  /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title:  Vice President
 

PROSIGHT SPECIALTY INSURANCE HOLDINGS, INC.
 
 
 
By:  /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title:  Vice President
 

PSI MERGER SUB INC.
 
 
 
By:  /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title:  Vice President
 

 
Page 52 of 53
 


TPG ADVISORS VI, INC.
 
 
 
By:  /s/ Ron Cami
  
Name: Ron Cami
  
Title: Vice President
  

David Bonderman
 
 
 
By: /s/ Ron Cami on behalf of David Bonderman (1)
  
Name: Ron Cami on behalf of David Bonderman (1)
  

James G. Coulter
 
 
 
By:  /s/ Ron Cami on behalf of James G. Coulter (2)
  
Name: Ron Cami on behalf of James G. Coulter (2)
  

(1)  Ron Cami is signing on behalf of Mr. Bonderman pursuant to an authorization and designation letter dated July 1, 2010, which is filed as an exhibit herewith.

(2)  Ron Cami is signing on behalf of Mr. Coulter pursuant to an authorization and designation letter dated July 1, 2010, which is filed as an exhibit herewith.
 
 
 
 
EX-99.2 15 ex99_2.htm EXHIBIT 99.2 ex99_2.htm
Exhibit 99.2

EXECUTION COPY

SHAREHOLDERS AGREEMENT

SHAREHOLDERS AGREEMENT (this “Agreement”), dated as of July 15, 2010, by and among ProSight Specialty Insurance Holdings, Inc., a Delaware corporation (“Parent”), PSI Merger Sub Inc., a New York corporation (“Merger Sub”) and the Shareholders set forth on Schedule A (collectively, the “Shareholders”).  Capitalized terms used but not defined in this Agreement have the meanings ascribed thereto in the Merger Agreement (as defined below).

RECITALS

WHEREAS, concurrently with the execution of this Agreement, NYMAGIC, Inc., a New York corporation (the “Company”), Parent and Merger Sub are entering into an Agreement and Plan of Merger of even date herewith (a copy of which is attached hereto the “Merger Agreement”);

WHEREAS, as of the date hereof, each Shareholder is the record and beneficial owner of, and has the right to vote and dispose of, the number of Company Shares (such shares, together with any other Company Shares acquired by the Shareholders after the date hereof, whether acquired directly or indirectly, upon the exercise of options, conversion of convertible securities or otherwise, collectively, the “Shareholder Shares”) set forth next to such Shareholder’s name on Schedule A; and

WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and Merger Sub have required that the Shareholders enter into this Agreement and, in order to induce Parent and Merger Sub to enter into the Merger Agreement, the Shareholders are willing to enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1.1             Agreements of the Shareholders.

(a)            Voting.  From the date hereof until any termination of this Agreement in accordance with its terms, at any meeting of the Shareholders of the Company however called (or any action by written consent in lieu of a meeting) or any adjournment thereof, each Shareholder shall vote its Shareholder Shares (or cause them to be voted) or (as appropriate) execute written consents in respect thereof, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval of any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on whi ch such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made, directly or indirectly, in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Transactions.  Any such vote shall be cast (or consent shall be given) by the Shareholders in accordance with such procedures relating thereto so as to ensure that it is duly counted, including for purposes of determining that a quorum is present and for purposes of recording the results of such vote (or consent) (to the fullest extent that such Shareholder Shares may be counted for quorum purposes under applicable Law). Notwithstanding the foregoing, each of the Shareholders shall remain free to vote such Shareholder Shares with respect to any matter not covered by this Section 1(a).

 
 
 

(b)           Proxy.  In furtherance of the Shareholders’ agreement in Section 1(a), the Shareholders hereby appoint Parent and Parent’s designees, and each of them individually, as the Shareholders’ proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Shareholders, to vote all Shareholder Shares (at any meeting of Shareholders of the Company however called or any adjournment thereof), or to execute one or more written consents in respect of the Shareholder Shares, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval of any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Merger.  Such proxy shall be valid and irrevocable until the termination of this Agreement in accordance with Section 4.  Each Shareholder represents that any and all other proxies heretofore given in respect of Shareholder Shares are revocable, and that such other proxies have been revoked.  Each Shareholder affirms that the foregoing proxy is: (i) given (A) in connection with the execution of the Merger Agreement and (B) to secure the performance of such Shareholder’s duties under this Agreement, (ii) coupled with an interest and may not be revoked except as otherwise provided in this Agreement and (iii) intended to be irrevocable prior to termination of this Agreement in accordance with the provisions of the NYBCL.  All authority herein conferred shall survive the death or incapacity of each Shareholder and shall be binding upon the heirs, estate, administrators, personal representatives, successors and assigns of each Shareholder.

(c)           Appraisal Rights.  Each Shareholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights in connection with the Transactions.

(d)           Restriction on Transfer; Proxies; Non-Interference; etc.  From the date hereof until any termination of this Agreement in accordance with its terms, the Shareholders shall not, directly or indirectly (i) except as set forth on Schedule 1(d) hereto sell, transfer, give, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, gift, pledge, encumbrance, assignment or other disposition of, any Shareholder Shares (or any right, title or interest thereto or therein), (ii) deposit any Shareholder Share s into a voting trust or grant any proxies or enter into a voting agreement, power of attorney or voting trust with respect to any Shareholder Shares, (iii) take any action that would make any representation or warranty of the Shareholders set forth in this Agreement untrue or incorrect in any material respect or have the effect of preventing, disabling or delaying any Shareholder from performing any of its obligations under this Agreement or (iv) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i), (ii) or (iii) of this Section 1(d).

 
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(e)           No Solicitation.  Each Shareholder agrees that, except as permitted by Section 5.2 of the Merger Agreement, such Shareholder shall not, directly or indirectly, (i) solicit, knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) the making of, or any inquiries regarding, a Takeover Proposal or (ii) engage in, continue or otherwise participate in any discussions or negotiations with any third party regarding a Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal.  Each Shareholder shall a s promptly as reasonably practicable advise the Company in writing, and in no event later than twenty four (24) hours after receipt, if any proposal, offer or inquiry is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, such Shareholder in respect of a Takeover Proposal or potential Takeover Proposal, and shall, in such notice to  the Company, indicate the identity of the Person or group of Persons making such proposal, offer, inquiry or request and the material terms and conditions of such proposal or offer and the nature of such inquiry or request (and shall include with such notice copies of any draft agreements and financing commitment letters).

(f)            Conduct of Shareholder.  Until any termination of this Agreement in accordance with its terms, each Shareholder that is not an individual (i) shall maintain its status as duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (ii) shall not dissolve, merge or combine with any Person, or adopt any plan of complete or partial liquidation, in each case, without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed, it being agreed that Parent may withhold its consent if in its judgment the proposed action would jeopardize the benefits intended to be provided to Parent and Merger Sub under this Agreement.

(g)           Publication.  Each Shareholder (i) consents to Parent and Merger Sub publishing and disclosing each Shareholder’s identity and ownership of Company Common Stock and the nature of each Shareholder’s commitments, arrangements and understandings under this Agreement, in each case, that Parent reasonably determines is required to be disclosed under applicable Law in any press release, the Proxy Statement (including all schedules and documents filed with the SEC) or any other disclosure document in connection with the Merger and any other Transactions and (ii) agrees to give promptly to Parent any information Parent may reasonably require for the preparation of any such disclosure documents.  Each Sharehold er agrees to promptly notify the Company of any required corrections with respect to any information supplied by such Shareholder specifically for use in any such disclosure document, if and to the extent that any such information shall have become false or misleading in any material respect.  The Shareholders shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or the Transactions without the prior written consent of Parent, except as may be required by applicable Law.

 
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Section 1.2             Representations and Warranties of Parent.

(a)           Organization; Authority.  Parent hereby represents and warrants to each Shareholder that (a) Parent and Merger Sub are corporations duly organized, validly existing and in good standing under the laws of the jurisdiction of their organization, (b) Parent and Merger Sub have all necessary corporate power and authority to execute and deliver this Agreement and to perform their respective obligations hereunder, (c) the execution, delivery and performance by Parent and Merger Sub of this Agreement and, subject to the terms and conditions of the Merger Agreement, the consummation by Parent and Merger Sub of the transactions contemplated hereby, have been duly autho rized by all necessary action on the part of Parent and Merger Sub and (d) this Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Shareholders, constitutes a legal, valid and binding obligation of Parent and Merger Sub, enforceable against each of them in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)           Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by Parent or Merger Sub of their obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtain ed, made or given, would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.  Neither the execution and delivery of this Agreement by Parent and Merger Sub, nor the consummation by Parent and Merger Sub of the transactions contemplated hereby, nor compliance by Parent and Merger Sub with any of the terms or provisions hereof will, (i) violate or conflict with any provision of the organizational documents of Parent or Merger Sub or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to Parent or Merger Sub or any Subsidiary of Parent or Merger Sub or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right o f termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, Parent or Merger Sub or any of their Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which Parent or Merger Sub or any of their Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.

 
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Section 1.3             Representations and Warranties of the Shareholders.  Each Shareholder hereby represents and warrants to Parent and Merger Sub as follows:

(a)           Organization; Authority.  Each Shareholder that is a corporation, partnership, limited liability company, trust or other entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.  If such Shareholder is not an individual, it has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder.  The execution, delivery and performance by each Shareholder of this Agreement and the transactions contemplated hereby have been duly authorized and approved by all necessary action on the part of each Shareholder and no further action on the part of any Shareholder is necessary to authorize the execution and delivery by each Shareholder of this Agreement or the performance by each Shareholder of its obligations hereunder.  This Agreement has been duly executed and delivered by each Shareholder and, assuming due and valid authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a valid and binding obligation of each Shareholder, enforceable against each Shareholder in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)           Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by any Shareholder of its obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and other than such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not ob tained, made or given, would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.  Neither the execution and delivery of this Agreement by each Shareholder, nor the consummation by each Shareholder of the transactions contemplated hereby, nor compliance by each Shareholder with any of the terms or provisions hereof will, (i) if such Shareholder is not an individual, violate or conflict with any provision of the organizational documents of any Shareholder or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to any Shareholder or any Subsidiary of a Shareholder that is not an individual or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result i n the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, any Shareholder or, if such Shareholder is not an individual, any of its Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which any Shareholder, or, if such Shareholder is not an individual, any of its Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.

 
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(c)           Ownership of Shares.  Each Shareholder owns, beneficially and of record, that number of Shareholder Shares as set forth next to such Shareholder’s name on Schedule A (as may be subject to adjustment as set forth in Section 5(c)).  Except as set forth in the Amended and Restated Voting Trust Agreement with Mariner Partners, the Shareholders own the Shareholder Shares free and clear of any proxy, voting restriction, adverse claim or other Lien (other than proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions o f general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States).  Without limiting the foregoing, except for proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States, each Shareholder has sole voting power and sole power of disposition with respect to its Shareholder Shares, with no restrictions on any Shareholders’ rights of voting or disposition pertaining thereto and no Person other than the Shareholders has any right to direct or approve the voting or disposition of any Shareholder Shares.  As of the date hereof, the Shareholders do not own, beneficially or of record, any securities of the Company other than those set forth on Schedule A which constitute Shareholder Shares.

(d)           Brokers.  No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission that is payable by the Company, Parent or any of their respective Subsidiaries in connection with the Transactions based upon arrangements made by or on behalf of any Shareholder.

(e)           Absence of Litigation.  With respect to any Shareholder, there is no pending or, to the knowledge of such Shareholder, threatened, legal, administrative, arbitral or other proceeding, claim, suit or action against, or governmental or regulatory investigation of, such Shareholder or any of its, his or her properties or assets (including such Shareholder’s Shareholder Shares), nor is there any injunction, order, judgment, ruling or decree imposed (or, to the knowledge of the Shareholder, threatened to be imposed) upon the Shareholder or any of its Subsidiaries or the assets of the Shareholder or any of its Subsidiaries, by or before any Governmental Author ity, that could reasonably be expected to impair the ability of such Shareholder to perform his or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(f)           Opportunity to Review; Reliance.  Each Shareholder has had the opportunity to review this Agreement and the Merger Agreement with counsel of his or its own choosing.  Each Shareholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon such Shareholder’s execution, delivery and performance of this Agreement.

Section 1.4           Termination.  This Agreement and the proxy granted pursuant to Section 1(b) hereof shall terminate on the first to occur of the (a) Effective Time, (b) April 15, 2011 (c) termination of the Merger Agreement in accordance with its terms and (d) the effectiveness of any amendment, modification, supplement to, or waiver under, the Merger Agreement which amendment, modification, supplement or waiver would reduce the amount or change the form or composition of the Merger Consideration payable in the Merger.  Notwithstanding the foregoing, (i) nothing herein shall relieve any party fr om liability for breach of this Agreement and (ii) the provisions of this Section 4, Section 5 and the above Recitals, shall survive any termination of this Agreement.

 
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Section 1.5             Miscellaneous.

(a)           Action in Shareholder Capacity Only.   The parties acknowledge that this Agreement is entered into by each Shareholder in his, her or its capacity as owner of Shareholder Shares and that nothing in this Agreement shall in any way restrict or limit any actions taken by the Shareholders in any other capacity including without limitation as a director, officer, employee or agent of the Company.

(b)           Expenses.  All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

(c)           Additional Shares.  Until any termination of this Agreement in accordance with its terms, each Shareholder shall promptly notify Parent of the number of shares, if any, as to which such Shareholder acquires record or beneficial ownership after the date hereof.  Any shares as to which any Shareholder acquires record or beneficial ownership after the date hereof and prior to termination of this Agreement shall be Shareholder Shares for purposes of this Agreement.  Without limiting the foregoing, in the event of any stock split, stock dividend or other change in the capital structure of the Company affecting the Company Shares, the number of s hares constituting Shareholder Shares shall be adjusted appropriately and this Agreement and the obligations hereunder shall attach to any additional shares of Company Shares or other voting securities of the Company issued to any Shareholder in connection therewith.

(d)           Definition of “Beneficial Ownership”.  For purposes of this Agreement, “beneficial ownership” with respect to (or to “own beneficially”) any securities shall mean having “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any agreement, arrangement or understanding, whether or not in writing.

(e)           Further Assurances.  From time to time, at the request of Parent and without further consideration, each Shareholder shall execute and deliver such additional documents and take all such further action as may be reasonably required to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.

(f)            Amendments; Waiver.  This Agreement may not be amended or supplemented, except by a written agreement executed by each of the parties hereto.  At any time prior to the termination of this Agreement, any party to this Agreement may, subject to applicable Law, (i) waive any inaccuracies in the representations and warranties of any other party hereto, (ii) extend the time for the performance of any of the obligations or acts of any other party hereto or (iii) waive compliance by the other party with any of the agreements contained herein.  Notwithstanding the foregoing, no failure or delay by any party to this Agreement in exercising any righ t hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right hereunder.  Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.

 
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(g)           Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, any of the parties without the prior written consent of the other parties.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.  No past, present or future director, officer, employee, incorporator, member, partner or stockholder of Parent shall have any liability for any obligations of Parent under this Agreement or for any claim base d on, in respect of, or by reason of, the Transactions.  Any purported assignment not permitted under this Section 5(g) shall be null and void.

(h)           Entire Agreement.  This Agreement (including the schedules hereto) constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

(i)            No Third Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties hereto (and their respective successors and permitted assigns) any right or remedy of any nature whatsoever under or by reason of this Agreement.

(j)            Governing Law; Enforcement; Jurisdiction; Waiver of Jury Trial.

(i)            This Agreement, and any other agreement, document or instrument delivered pursuant hereto, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement (or such other document) or the negotiation, execution, termination, performance or nonperformance of this Agreement (or such other document) (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by the internal laws of the State of New York, without regard to its conflicts of law principles.

(ii)           All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in the Agreed Courts, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.  The consents to jurisdiction set forth in this paragraph shall not constitute general consents to service of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the partie s hereto.  The parties hereto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

 
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(iii)           EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(k)           Specific Enforcement.  The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages.  It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, and to enforce specifically the terms and provisions of this Agreement in the Agreed Courts, this being in addition to any other remedy to which they are entitled at law or in equity.

(l)           Notices.  All notices, requests and other communications to any party hereunder shall be in writing (including email and facsimile transmission) and shall be given:

If to Parent or Merger Sub, to:

c/o Goldman, Sachs & Co.
200 West Street
New York, New York 10282-2198
Attention: Sumit Rajpal
Facsimile: 212-357-5505
Email: sumit.rajpal@gs.com

and to:

c/o TPG Capital, L.P.
345 California Street, Suite 3300
San Francisco, CA 94104
Attention: Ronald Cami
Facsimile: 415-743-1501

with a copy (which shall not constitute notice) to:

Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York  10153
Attention:  Michael J. Aiello
Joseph T. Verdesca, Jr.
Facsimile:  (212) 310-8007
Email:          michael.aiello@weil.com
joseph.verdesca@weil.com

 
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If to a Shareholder, to his, her or its address set forth on Schedule A.

or such other address, email address or facsimile number as such party may hereafter specify by like notice to the other parties hereto.  All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

(m)           Severability.  If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest e xtent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

(n)           Interpretation.

(i)            Any reference to any national, state, local or foreign Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context otherwise required.  When a reference is made in this Agreement to a Section or Schedule, such reference shall be to a Section of or Schedule to this Agreement unless otherwise indicated.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” 0; The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.  Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparabl e successor statutes and references to all attachments thereto and instruments incorporated therein.  References to a Person are also to its permitted successors and assigns.  In this Agreement, the Shareholder of any Company Shares held in trust shall be deemed to be the relevant trust and/or the trustees thereof acting in their capacities as such trustees, in each case as the context may require to be most protective of Parent, including for purposes of such trustees’ representations and warranties as to the proper organization of the trust, their power and authority as trustees and the non-contravention of the trust’s governing instruments.

 
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(ii)           The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

(o)           Counterparts.  This Agreement may be executed in counterparts (each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

[Signature Pages Follow]

 
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.

 
PROSIGHT SPECIALTY INSURANCE HOLDINGS, INC.
   
   
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President
   
 
PSI MERGER SUB INC.
     
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President
 
SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT
 
 
 
 


 
MARK W. BLACKMAN
   
   
 
By:
 /s/ Mark W. Blackman
 
Name: Mark W. Blackman
 
SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT

 
 
 
 
Schedule A

Shareholder
Notice Information
Shareholder Shares
Mark W. Blackman
80 Deepwood Road
Darien, CT 06820
1,095,606

 
 
 

Schedule 1(d)

The Shareholder may transfer up to 50,000 Company Shares provided that the transferee agrees to be bound by the terms, conditions and obligations of this Agreement as if a Shareholder hereto.

 
EX-99.3 16 ex99_3.htm EXHIBIT 99.3 ex99_3.htm
Exhibit 99.3
 
EXECUTION COPY

SHAREHOLDERS AGREEMENT

SHAREHOLDERS AGREEMENT (this “Agreement”), dated as of July 15, 2010, by and among ProSight Specialty Insurance Holdings, Inc., a Delaware corporation (“Parent”), PSI Merger Sub Inc., a New York corporation (“Merger Sub”) and the Shareholders set forth on Schedule A (collectively, the “Shareholders”).  Capitalized terms used but not defined in this Agreement have the meanings ascribed thereto in the Merger Agreement (as defined below).

RECITALS

WHEREAS, concurrently with the execution of this Agreement, NYMAGIC, Inc., a New York corporation (the “Company”), Parent and Merger Sub are entering into an Agreement and Plan of Merger of even date herewith (a copy of which is attached hereto the “Merger Agreement”);

WHEREAS, as of the date hereof, each Shareholder is the record and beneficial owner of, and has the right to vote and dispose of, the number of Company Shares (such shares, together with any other Company Shares acquired by the Shareholders after the date hereof, whether acquired directly or indirectly, upon the exercise of options, conversion of convertible securities or otherwise, collectively, the “Shareholder Shares”) set forth next to such Shareholder’s name on Schedule A; and

WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and Merger Sub have required that the Shareholders enter into this Agreement and, in order to induce Parent and Merger Sub to enter into the Merger Agreement, the Shareholders are willing to enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1.1              Agreements of the Shareholders.

(a)            Voting.  From the date hereof until any termination of this Agreement in accordance with its terms, at any meeting of the Shareholders of the Company however called (or any action by written consent in lieu of a meeting) or any adjournment thereof, each Shareholder shall vote its Shareholder Shares (or cause them to be voted) or (as appropriate) execute written consents in respect thereof, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval of any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made, directly or indirectly, in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Transactions.  Any such vote shall be cast (or consent shall be given) by the Shareholders in accordance with such procedures relating thereto so as to ensure that it is duly counted, including for purposes of determining that a quorum is present and for purposes of recording the results of such vote (or consent) (to the fullest extent that such Shareholder Shares may be counted for quorum purposes under applicable Law).  Notwithstanding the foregoing, each of the Shareholders shall remain free to vote such Shareholder Shares with respect to any matter not covered by this Section 1(a).

 
 
 

(b)            Proxy.  In furtherance of the Shareholders’ agreement in Section 1(a), the Shareholders hereby appoint Parent and Parent’s designees, and each of them individually, as the Shareholders’ proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Shareholders, to vote all Shareholder Shares (at any meeting of Shareholders of the Company however called or any adjournment thereof), or to execute one or more written consents in respect of the Shareholder Shares, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval o f any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Merger.  Such proxy shall be valid and irrevocable until the termination of this Agreement in accordance with S ection 4.  Each Shareholder represents that any and all other proxies heretofore given in respect of Shareholder Shares are revocable, and that such other proxies have been revoked.  Each Shareholder affirms that the foregoing proxy is: (i) given (A) in connection with the execution of the Merger Agreement and (B) to secure the performance of such Shareholder’s duties under this Agreement, (ii) coupled with an interest and may not be revoked except as otherwise provided in this Agreement and (iii) intended to be irrevocable prior to termination of this Agreement in accordance with the provisions of the NYBCL.  All authority herein conferred shall survive the death or incapacity of each Shareholder and shall be binding upon the heirs, estate, administrators, personal representatives, successors and assigns of each Shareholder.

(c)            Appraisal Rights.  Each Shareholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights in connection with the Transactions.

(d)            Restriction on Transfer; Proxies; Non-Interference; etc.  From the date hereof until any termination of this Agreement in accordance with its terms, the Shareholders shall not, directly or indirectly (i) except as set forth on Schedule 1(d) hereto sell, transfer, give, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, gift, pledge, encumbrance, assignment or other disposition of, any Shareholder Shares (or any right, title or interest thereto or therein), (ii) deposit any Shareholder Shares into a voting trust or grant any p roxies or enter into a voting agreement, power of attorney or voting trust with respect to any Shareholder Shares, (iii) take any action that would make any representation or warranty of the Shareholders set forth in this Agreement untrue or incorrect in any material respect or have the effect of preventing, disabling or delaying any Shareholder from performing any of its obligations under this Agreement or (iv) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i), (ii) or (iii) of this Section 1(d).

 
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(e)            No Solicitation.  Each Shareholder agrees that, except as permitted by Section 5.2 of the Merger Agreement, such Shareholder shall not, directly or indirectly, (i) solicit, knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) the making of, or any inquiries regarding, a Takeover Proposal or (ii) engage in, continue or otherwise participate in any discussions or negotiations with any third party regarding a Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal.  Each Shareholder shall as promptly as reasonably practicable advise the Company in writing, and in no event later than twenty four (24) hours after receipt, if any proposal, offer or inquiry is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, such Shareholder in respect of a Takeover Proposal or potential Takeover Proposal, and shall, in such notice to  the Company, indicate the identity of the Person or group of Persons making such proposal, offer, inquiry or request and the material terms and conditions of such proposal or offer and the nature of such inquiry or request (and shall include with such notice copies of any draft agreements and financing commitment letters).

(f)             Conduct of Shareholder.  Until any termination of this Agreement in accordance with its terms, each Shareholder that is not an individual (i) shall maintain its status as duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (ii) shall not dissolve, merge or combine with any Person, or adopt any plan of complete or partial liquidation, in each case, without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed, it being agreed that Parent may withhold its consent if in its judgment the proposed action would jeopardize the benefits intended to be provided to Parent and Merger Sub under this Agreement.

(g)            Publication.  Each Shareholder (i) consents to Parent and Merger Sub publishing and disclosing each Shareholder’s identity and ownership of Company Common Stock and the nature of each Shareholder’s commitments, arrangements and understandings under this Agreement, in each case, that Parent reasonably determines is required to be disclosed under applicable Law in any press release, the Proxy Statement (including all schedules and documents filed with the SEC) or any other disclosure document in connection with the Merger and any other Transactions and (ii) agrees to give promptly to Parent any information Parent may reasonably require for the preparation of any such disclosure documents.  Each Shareholder agrees to promptly notify the Com pany of any required corrections with respect to any information supplied by such Shareholder specifically for use in any such disclosure document, if and to the extent that any such information shall have become false or misleading in any material respect.  The Shareholders shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or the Transactions without the prior written consent of Parent, except as may be required by applicable Law.

 
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Section 1.2              Representations and Warranties of Parent.

(a)            Organization; Authority.  Parent hereby represents and warrants to each Shareholder that (a) Parent and Merger Sub are corporations duly organized, validly existing and in good standing under the laws of the jurisdiction of their organization, (b) Parent and Merger Sub have all necessary corporate power and authority to execute and deliver this Agreement and to perform their respective obligations hereunder, (c) the execution, delivery and performance by Parent and Merger Sub of this Agreement and, subject to the terms and conditions of the Merger Agreement, the consummation by Parent and Merger Sub of the transactions contemplated hereby, have been duly authorized by all necessary action on the part of Parent and Merger Sub and (d) this Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Shareholders, constitutes a legal, valid and binding obligation of Parent and Merger Sub, enforceable against each of them in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by Parent or Merger Sub of their obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, indivi dually or in the aggregate, reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.  Neither the execution and delivery of this Agreement by Parent and Merger Sub, nor the consummation by Parent and Merger Sub of the transactions contemplated hereby, nor compliance by Parent and Merger Sub with any of the terms or provisions hereof will, (i) violate or conflict with any provision of the organizational documents of Parent or Merger Sub or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to Parent or Merger Sub or any Subsidiary of Parent or Merger Sub or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, Parent or Merger Sub or any of their Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which Parent or Merger Sub or any of their Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.

 
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Section 1.3     Representations and Warranties of the Shareholders.  Each Shareholder hereby represents and warrants to Parent and Merger Sub as follows:

(a)            Organization; Authority.  Each Shareholder that is a corporation, partnership, limited liability company, trust or other entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.  If such Shareholder is not an individual, it has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder.  The execution, delivery and performance by each Shareholder of this Agreement and the transactions contemplated hereby have been duly authorized and approved by all necessary action on the part of each Shareholder and no further action on the part of any Shareholder is necessar y to authorize the execution and delivery by each Shareholder of this Agreement or the performance by each Shareholder of its obligations hereunder.  This Agreement has been duly executed and delivered by each Shareholder and, assuming due and valid authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a valid and binding obligation of each Shareholder, enforceable against each Shareholder in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by any Shareholder of its obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and other than such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, in dividually or in the aggregate, reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.  Neither the execution and delivery of this Agreement by each Shareholder, nor the consummation by each Shareholder of the transactions contemplated hereby, nor compliance by each Shareholder with any of the terms or provisions hereof will, (i) if such Shareholder is not an individual, violate or conflict with any provision of the organizational documents of any Shareholder or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to any Shareholder or any Subsidiary of a Shareholder that is not an individual or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of t ermination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, any Shareholder or, if such Shareholder is not an individual, any of its Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which any Shareholder, or, if such Shareholder is not an individual, any of its Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.

 
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(c)            Ownership of Shares.  Each Shareholder owns, beneficially and of record, that number of Shareholder Shares as set forth next to such Shareholder’s name on Schedule A (as may be subject to adjustment as set forth in Section 5(c)).  The Shareholders own the Shareholder Shares free and clear of any proxy, voting restriction, adverse claim or other Lien (other than proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of t he United States).  Without limiting the foregoing, except for proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States, each Shareholder has sole voting power and sole power of disposition with respect to its Shareholder Shares, with no restrictions on any Shareholders’ rights of voting or disposition pertaining thereto and no Person other than the Shareholders has any right to direct or approve the voting or disposition of any Shareholder Shares.  As of the date hereof, the Shareholders do not own, beneficially or of record, any securities of the Company other than those set forth on Schedule A which constitute Shareholder Shares.

(d)            Brokers.  No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission that is payable by the Company, Parent or any of their respective Subsidiaries in connection with the Transactions based upon arrangements made by or on behalf of any Shareholder.

(e)            Absence of Litigation.  With respect to any Shareholder, there is no pending or, to the knowledge of such Shareholder, threatened, legal, administrative, arbitral or other proceeding, claim, suit or action against, or governmental or regulatory investigation of, such Shareholder or any of its, his or her properties or assets (including such Shareholder’s Shareholder Shares), nor is there any injunction, order, judgment, ruling or decree imposed (or, to the knowledge of the Shareholder, threatened to be imposed) upon the Shareholder or any of its Subsidiaries or the assets of the Shareholder or any of its Subsidiaries, by or before any Governmental Authority, that could reasonably be expect ed to impair the ability of such Shareholder to perform his or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(f)             Opportunity to Review; Reliance.  Each Shareholder has had the opportunity to review this Agreement and the Merger Agreement with counsel of his or its own choosing.  Each Shareholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon such Shareholder’s execution, delivery and performance of this Agreement.

Section 1.4              Termination.  This Agreement and the proxy granted pursuant to Section 1(b) hereof shall terminate on the first to occur of the (a) Effective Time, (b) April 15, 2011 (c) termination of the Merger Agreement in accordance with its terms and (d) the effectiveness of any amendment, modification, supplement to, or waiver under, the Merger Agreement which amendment, modification, supplement or waiver would reduce the amount or change the form or composition of the Merger Consideration payable in the Merger.  Notwithstanding the foregoing, (i) nothing herein shall relieve any party from liability for breach of this Agreement and (ii) the provisions of this Section 4, Section 5 and the above Recitals, shall survive any termination of this Agreement.

 
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Section 1.5              Miscellaneous.

(a)            Action in Shareholder Capacity Only.   The parties acknowledge that this Agreement is entered into by each Shareholder in his, her or its capacity as owner of Shareholder Shares and that nothing in this Agreement shall in any way restrict or limit any actions taken by the Shareholders in any other capacity including without limitation as a director, officer, employee or agent of the Company.

(b)            Expenses.  All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

(c)            Additional Shares.  Until any termination of this Agreement in accordance with its terms, each Shareholder shall promptly notify Parent of the number of shares, if any, as to which such Shareholder acquires record or beneficial ownership after the date hereof.  Any shares as to which any Shareholder acquires record or beneficial ownership after the date hereof and prior to termination of this Agreement shall be Shareholder Shares for purposes of this Agreement.  Without limiting the foregoing, in the event of any stock split, stock dividend or other change in the capital structure of the Company affecting the Company Shares, the number of shares constituting Shareholder Share s shall be adjusted appropriately and this Agreement and the obligations hereunder shall attach to any additional shares of Company Shares or other voting securities of the Company issued to any Shareholder in connection therewith.

(d)            Definition of “Beneficial Ownership”.  For purposes of this Agreement, “beneficial ownership” with respect to (or to “own beneficially”) any securities shall mean having “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any agreement, arrangement or understanding, whether or not in writing.

(e)            Further Assurances.  From time to time, at the request of Parent and without further consideration, each Shareholder shall execute and deliver such additional documents and take all such further action as may be reasonably required to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.

(f)             Amendments; Waiver.  This Agreement may not be amended or supplemented, except by a written agreement executed by each of the parties hereto.  At any time prior to the termination of this Agreement, any party to this Agreement may, subject to applicable Law, (i) waive any inaccuracies in the representations and warranties of any other party hereto, (ii) extend the time for the performance of any of the obligations or acts of any other party hereto or (iii) waive compliance by the other party with any of the agreements contained herein.  Notwithstanding the foregoing, no failure or delay by any party to this Agreement in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right hereunder.  Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.

 
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(g)            Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, any of the parties without the prior written consent of the other parties.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.  No past, present or future director, officer, employee, incorporator, member, partner or stockholder of Parent shall have any liability for any obligations of Parent under this Agreement or for any claim based on, in respect of, or by reason of , the Transactions.  Any purported assignment not permitted under this Section 5(g) shall be null and void.

(h)            Entire Agreement.  This Agreement (including the schedules hereto) constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

(i)             No Third Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties hereto (and their respective successors and permitted assigns) any right or remedy of any nature whatsoever under or by reason of this Agreement.

(j)             Governing Law; Enforcement; Jurisdiction; Waiver of Jury Trial.

(i)             This Agreement, and any other agreement, document or instrument delivered pursuant hereto, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement (or such other document) or the negotiation, execution, termination, performance or nonperformance of this Agreement (or such other document) (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by the internal laws of the State of New York, without regard to its conflicts of law principles.

(ii)            All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in the Agreed Courts, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.  The consents to jurisdiction set forth in this paragraph shall not constitute general consents to service of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto.  The parties her eto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

 
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(iii)           EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(k)            Specific Enforcement.  The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages.  It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, and to enforce specifically the terms and provisions of this Agreement in the Agreed Courts, this being in addition to any other remedy to which they are entitled at law or in equity.

(l)             Notices.  All notices, requests and other communications to any party hereunder shall be in writing (including email and facsimile transmission) and shall be given:

If to Parent or Merger Sub, to:

c/o Goldman, Sachs & Co.
200 West Street
New York, New York 10282-2198
Attention: Sumit Rajpal
Facsimile: 212-357-5505
Email: sumit.rajpal@gs.com

and to:

c/o TPG Capital, L.P.
345 California Street, Suite 3300
San Francisco, CA 94104
Attention: Ronald Cami
Facsimile: 415-743-1501

with a copy (which shall not constitute notice) to:

Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York  10153
Attention:  Michael J. Aiello
                    Joseph T. Verdesca, Jr.
Facsimile:  (212) 310-8007
Email: michael.aiello@weil.com
           joseph.verdesca@weil.com

If to a Shareholder, to his, her or its address set forth on Schedule A.

 
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or such other address, email address or facsimile number as such party may hereafter specify by like notice to the other parties hereto.  All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

(m)           Severability.  If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

(n)            Interpretation.

(i)             Any reference to any national, state, local or foreign Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context otherwise required.  When a reference is made in this Agreement to a Section or Schedule, such reference shall be to a Section of or Schedule to this Agreement unless otherwise indicated.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  The words “hereof ,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.  Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and refere nces to all attachments thereto and instruments incorporated therein.  References to a Person are also to its permitted successors and assigns.  In this Agreement, the Shareholder of any Company Shares held in trust shall be deemed to be the relevant trust and/or the trustees thereof acting in their capacities as such trustees, in each case as the context may require to be most protective of Parent, including for purposes of such trustees’ representations and warranties as to the proper organization of the trust, their power and authority as trustees and the non-contravention of the trust’s governing instruments.

(ii)            The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

 
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(o)            Counterparts.  This Agreement may be executed in counterparts (each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

[Signature Pages Follow]

 
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.

 
PROSIGHT SPECIALTY INSURANCE
 
HOLDINGS, INC.
     
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President
     
     
 
PSI MERGER SUB INC.
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President


SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT

 
 
 

 
PAUL J. HART
     
 
By:
 /s/ Paul J. Hart
 
Name: Paul J. Hart


[SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT]

 
 
 

Schedule A


Shareholder
Notice Information
Shareholder Shares
Paul J. Hart
c/o NYMAGIC, INC.
919 Third Avenue
10th Floor
New York, NY 10022
42,090
 
 
EX-99.4 17 ex99_4.htm EXHIBIT 99.4 ex99_4.htm
Exhibit 99.4
 
EXECUTION COPY

SHAREHOLDERS AGREEMENT

SHAREHOLDERS AGREEMENT (this “Agreement”), dated as of July 15, 2010, by and among ProSight Specialty Insurance Holdings, Inc., a Delaware corporation (“Parent”), PSI Merger Sub Inc., a New York corporation (“Merger Sub”) and the Shareholders set forth on Schedule A (collectively, the “Shareholders”).  Capitalized terms used but not defined in this Agreement have the meanings ascribed thereto in the Merger Agreement (as defined below).

RECITALS

WHEREAS, concurrently with the execution of this Agreement, NYMAGIC, Inc., a New York corporation (the “Company”), Parent and Merger Sub are entering into an Agreement and Plan of Merger of even date herewith (a copy of which is attached hereto the “Merger Agreement”);

WHEREAS, as of the date hereof, each Shareholder is the record and beneficial owner of, and has the right to vote and dispose of, the number of Company Shares (such shares, together with any other Company Shares acquired by the Shareholders after the date hereof, whether acquired directly or indirectly, upon the exercise of options, conversion of convertible securities or otherwise, collectively, the “Shareholder Shares”) set forth next to such Shareholder’s name on Schedule A; and

WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and Merger Sub have required that the Shareholders enter into this Agreement and, in order to induce Parent and Merger Sub to enter into the Merger Agreement, the Shareholders are willing to enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1.1              Agreements of the Shareholders.

(a)            Voting.  From the date hereof until any termination of this Agreement in accordance with its terms, at any meeting of the Shareholders of the Company however called (or any action by written consent in lieu of a meeting) or any adjournment thereof, each Shareholder shall vote its Shareholder Shares (or cause them to be voted) or (as appropriate) execute written consents in respect thereof, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval of any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made, directly or indirectly, in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Transactions.  Any such vote shall be cast (or consent shall be given) by the Shareholders in accordance with such procedures relating thereto so as to ensure that it is duly counted, including for purposes of determining that a quorum is present and for purposes of recording the results of such vote (or consent) (to the fullest extent that such Shareholder Shares may be counted for quorum purposes under applicable Law).  Notwithstanding the foregoing, each of the Shareholders shall remain free to vote such Shareholder Shares with respect to any matter not covered by this Section 1(a).

 
 
 

(b)            Proxy.  In furtherance of the Shareholders’ agreement in Section 1(a), the Shareholders hereby appoint Parent and Parent’s designees, and each of them individually, as the Shareholders’ proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Shareholders, to vote all Shareholder Shares (at any meeting of Shareholders of the Company however called or any adjournment thereof), or to execute one or more written consents in respect of the Shareholder Shares, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval o f any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Merger.  Such proxy shall be valid and irrevocable until the termination of this Agreement in accordance with S ection 4.  Each Shareholder represents that any and all other proxies heretofore given in respect of Shareholder Shares are revocable, and that such other proxies have been revoked.  Each Shareholder affirms that the foregoing proxy is: (i) given (A) in connection with the execution of the Merger Agreement and (B) to secure the performance of such Shareholder’s duties under this Agreement, (ii) coupled with an interest and may not be revoked except as otherwise provided in this Agreement and (iii) intended to be irrevocable prior to termination of this Agreement in accordance with the provisions of the NYBCL.  All authority herein conferred shall survive the death or incapacity of each Shareholder and shall be binding upon the heirs, estate, administrators, personal representatives, successors and assigns of each Shareholder.

(c)            Appraisal Rights.  Each Shareholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights in connection with the Transactions.

(d)            Restriction on Transfer; Proxies; Non-Interference; etc.  From the date hereof until any termination of this Agreement in accordance with its terms, the Shareholders shall not, directly or indirectly (i) except as set forth on Schedule 1(d) hereto sell, transfer, give, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, gift, pledge, encumbrance, assignment or other disposition of, any Shareholder Shares (or any right, title or interest thereto or therein), (ii) deposit any Shareholder Shares into a voting trust or grant any p roxies or enter into a voting agreement, power of attorney or voting trust with respect to any Shareholder Shares, (iii) take any action that would make any representation or warranty of the Shareholders set forth in this Agreement untrue or incorrect in any material respect or have the effect of preventing, disabling or delaying any Shareholder from performing any of its obligations under this Agreement or (iv) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i), (ii) or (iii) of this Section 1(d).

 
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(e)            No Solicitation.  Each Shareholder agrees that, except as permitted by Section 5.2 of the Merger Agreement, such Shareholder shall not, directly or indirectly, (i) solicit, knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) the making of, or any inquiries regarding, a Takeover Proposal or (ii) engage in, continue or otherwise participate in any discussions or negotiations with any third party regarding a Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal.  Each Shareholder shall as promptly as reasonably practicable advise the Company in writing, and in no event later than twenty four (24) hours after receipt, if any proposal, offer or inquiry is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, such Shareholder in respect of a Takeover Proposal or potential Takeover Proposal, and shall, in such notice to  the Company, indicate the identity of the Person or group of Persons making such proposal, offer, inquiry or request and the material terms and conditions of such proposal or offer and the nature of such inquiry or request (and shall include with such notice copies of any draft agreements and financing commitment letters).

(f)             Conduct of Shareholder.  Until any termination of this Agreement in accordance with its terms, each Shareholder that is not an individual (i) shall maintain its status as duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (ii) shall not dissolve, merge or combine with any Person, or adopt any plan of complete or partial liquidation, in each case, without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed, it being agreed that Parent may withhold its consent if in its judgment the proposed action would jeopardize the benefits intended to be provided to Parent and Merger Sub under this Agreement.

(g)            Publication.  Each Shareholder (i) consents to Parent and Merger Sub publishing and disclosing each Shareholder’s identity and ownership of Company Common Stock and the nature of each Shareholder’s commitments, arrangements and understandings under this Agreement, in each case, that Parent reasonably determines is required to be disclosed under applicable Law in any press release, the Proxy Statement (including all schedules and documents filed with the SEC) or any other disclosure document in connection with the Merger and any other Transactions and (ii) agrees to give promptly to Parent any information Parent may reasonably require for the preparation of any such disclosure documents.  Each Shareholder agrees to promptly notify the Com pany of any required corrections with respect to any information supplied by such Shareholder specifically for use in any such disclosure document, if and to the extent that any such information shall have become false or misleading in any material respect.  The Shareholders shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or the Transactions without the prior written consent of Parent, except as may be required by applicable Law.

 
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Section 1.2              Representations and Warranties of Parent.

(a)            Organization; Authority.  Parent hereby represents and warrants to each Shareholder that (a) Parent and Merger Sub are corporations duly organized, validly existing and in good standing under the laws of the jurisdiction of their organization, (b) Parent and Merger Sub have all necessary corporate power and authority to execute and deliver this Agreement and to perform their respective obligations hereunder, (c) the execution, delivery and performance by Parent and Merger Sub of this Agreement and, subject to the terms and conditions of the Merger Agreement, the consummation by Parent and Merger Sub of the transactions contemplated hereby, have been duly authorized by all necessary action on the part of Parent and Merger Sub and (d) this Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Shareholders, constitutes a legal, valid and binding obligation of Parent and Merger Sub, enforceable against each of them in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by Parent or Merger Sub of their obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, indivi dually or in the aggregate, reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.  Neither the execution and delivery of this Agreement by Parent and Merger Sub, nor the consummation by Parent and Merger Sub of the transactions contemplated hereby, nor compliance by Parent and Merger Sub with any of the terms or provisions hereof will, (i) violate or conflict with any provision of the organizational documents of Parent or Merger Sub or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to Parent or Merger Sub or any Subsidiary of Parent or Merger Sub or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, Parent or Merger Sub or any of their Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which Parent or Merger Sub or any of their Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.

 
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Section 1.3     Representations and Warranties of the Shareholders.  Each Shareholder hereby represents and warrants to Parent and Merger Sub as follows:

(a)            Organization; Authority.  Each Shareholder that is a corporation, partnership, limited liability company, trust or other entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.  If such Shareholder is not an individual, it has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder.  The execution, delivery and performance by each Shareholder of this Agreement and the transactions contemplated hereby have been duly authorized and approved by all necessary action on the part of each Shareholder and no further action on the part of any Shareholder is necessar y to authorize the execution and delivery by each Shareholder of this Agreement or the performance by each Shareholder of its obligations hereunder.  This Agreement has been duly executed and delivered by each Shareholder and, assuming due and valid authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a valid and binding obligation of each Shareholder, enforceable against each Shareholder in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by any Shareholder of its obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and other than such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, in dividually or in the aggregate, reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.  Neither the execution and delivery of this Agreement by each Shareholder, nor the consummation by each Shareholder of the transactions contemplated hereby, nor compliance by each Shareholder with any of the terms or provisions hereof will, (i) if such Shareholder is not an individual, violate or conflict with any provision of the organizational documents of any Shareholder or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to any Shareholder or any Subsidiary of a Shareholder that is not an individual or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of t ermination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, any Shareholder or, if such Shareholder is not an individual, any of its Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which any Shareholder, or, if such Shareholder is not an individual, any of its Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.

 
5
 

(c)            Ownership of Shares.  Each Shareholder owns, beneficially and of record, that number of Shareholder Shares as set forth next to such Shareholder’s name on Schedule A (as may be subject to adjustment as set forth in Section 5(c)).  The Shareholders own the Shareholder Shares free and clear of any proxy, voting restriction, adverse claim or other Lien (other than proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of t he United States).  Without limiting the foregoing, except for proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States, each Shareholder has sole voting power and sole power of disposition with respect to its Shareholder Shares, with no restrictions on any Shareholders’ rights of voting or disposition pertaining thereto and no Person other than the Shareholders has any right to direct or approve the voting or disposition of any Shareholder Shares.  As of the date hereof, the Shareholders do not own, beneficially or of record, any securities of the Company other than those set forth on Schedule A which constitute Shareholder Shares.

(d)            Brokers.  No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission that is payable by the Company, Parent or any of their respective Subsidiaries in connection with the Transactions based upon arrangements made by or on behalf of any Shareholder.

(e)            Absence of Litigation.  With respect to any Shareholder, there is no pending or, to the knowledge of such Shareholder, threatened, legal, administrative, arbitral or other proceeding, claim, suit or action against, or governmental or regulatory investigation of, such Shareholder or any of its, his or her properties or assets (including such Shareholder’s Shareholder Shares), nor is there any injunction, order, judgment, ruling or decree imposed (or, to the knowledge of the Shareholder, threatened to be imposed) upon the Shareholder or any of its Subsidiaries or the assets of the Shareholder or any of its Subsidiaries, by or before any Governmental Authority, that could reasonably be expect ed to impair the ability of such Shareholder to perform his or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(f)             Opportunity to Review; Reliance.  Each Shareholder has had the opportunity to review this Agreement and the Merger Agreement with counsel of his or its own choosing.  Each Shareholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon such Shareholder’s execution, delivery and performance of this Agreement.

Section 1.4              Termination.  This Agreement and the proxy granted pursuant to Section 1(b) hereof shall terminate on the first to occur of the (a) Effective Time, (b) April 15, 2011 (c) termination of the Merger Agreement in accordance with its terms and (d) the effectiveness of any amendment, modification, supplement to, or waiver under, the Merger Agreement which amendment, modification, supplement or waiver would reduce the amount or change the form or composition of the Merger Consideration payable in the Merger.  Notwithstanding the foregoing, (i) nothing herein shall relieve any party from liability for breach of this Agreement and (ii) the provisions of this Section 4, Section 5 and the above Recitals, shall survive any termination of this Agreement.

 
6
 

Section 1.5              Miscellaneous.

(a)            Action in Shareholder Capacity Only.   The parties acknowledge that this Agreement is entered into by each Shareholder in his, her or its capacity as owner of Shareholder Shares and that nothing in this Agreement shall in any way restrict or limit any actions taken by the Shareholders in any other capacity including without limitation as a director, officer, employee or agent of the Company.

(b)            Expenses.  All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

(c)            Additional Shares.  Until any termination of this Agreement in accordance with its terms, each Shareholder shall promptly notify Parent of the number of shares, if any, as to which such Shareholder acquires record or beneficial ownership after the date hereof.  Any shares as to which any Shareholder acquires record or beneficial ownership after the date hereof and prior to termination of this Agreement shall be Shareholder Shares for purposes of this Agreement.  Without limiting the foregoing, in the event of any stock split, stock dividend or other change in the capital structure of the Company affecting the Company Shares, the number of shares constituting Shareholder Share s shall be adjusted appropriately and this Agreement and the obligations hereunder shall attach to any additional shares of Company Shares or other voting securities of the Company issued to any Shareholder in connection therewith.

(d)            Definition of “Beneficial Ownership”.  For purposes of this Agreement, “beneficial ownership” with respect to (or to “own beneficially”) any securities shall mean having “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any agreement, arrangement or understanding, whether or not in writing.

(e)            Further Assurances.  From time to time, at the request of Parent and without further consideration, each Shareholder shall execute and deliver such additional documents and take all such further action as may be reasonably required to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.

(f)             Amendments; Waiver.  This Agreement may not be amended or supplemented, except by a written agreement executed by each of the parties hereto.  At any time prior to the termination of this Agreement, any party to this Agreement may, subject to applicable Law, (i) waive any inaccuracies in the representations and warranties of any other party hereto, (ii) extend the time for the performance of any of the obligations or acts of any other party hereto or (iii) waive compliance by the other party with any of the agreements contained herein.  Notwithstanding the foregoing, no failure or delay by any party to this Agreement in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right hereunder.  Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.

 
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(g)            Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, any of the parties without the prior written consent of the other parties.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.  No past, present or future director, officer, employee, incorporator, member, partner or stockholder of Parent shall have any liability for any obligations of Parent under this Agreement or for any claim based on, in respect of, or by reason of , the Transactions.  Any purported assignment not permitted under this Section 5(g) shall be null and void.

(h)            Entire Agreement.  This Agreement (including the schedules hereto) constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

(i)             No Third Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties hereto (and their respective successors and permitted assigns) any right or remedy of any nature whatsoever under or by reason of this Agreement.

(j)             Governing Law; Enforcement; Jurisdiction; Waiver of Jury Trial.

(i)             This Agreement, and any other agreement, document or instrument delivered pursuant hereto, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement (or such other document) or the negotiation, execution, termination, performance or nonperformance of this Agreement (or such other document) (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by the internal laws of the State of New York, without regard to its conflicts of law principles.

(ii)            All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in the Agreed Courts, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.  The consents to jurisdiction set forth in this paragraph shall not constitute general consents to service of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto.  The parties her eto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

 
8
 

(iii)           EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(k)            Specific Enforcement.  The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages.  It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, and to enforce specifically the terms and provisions of this Agreement in the Agreed Courts, this being in addition to any other remedy to which they are entitled at law or in equity.

(l)             Notices.  All notices, requests and other communications to any party hereunder shall be in writing (including email and facsimile transmission) and shall be given:

If to Parent or Merger Sub, to:

c/o Goldman, Sachs & Co.
200 West Street
New York, New York 10282-2198
Attention: Sumit Rajpal
Facsimile: 212-357-5505
Email: sumit.rajpal@gs.com

and to:

c/o TPG Capital, L.P.
345 California Street, Suite 3300
San Francisco, CA 94104
Attention: Ronald Cami
Facsimile: 415-743-1501

with a copy (which shall not constitute notice) to:

Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York  10153
Attention:  Michael J. Aiello
                    Joseph T. Verdesca, Jr.
Facsimile:  (212) 310-8007
Email: michael.aiello@weil.com
           joseph.verdesca@weil.com

If to a Shareholder, to his, her or its address set forth on Schedule A.

 
9
 

or such other address, email address or facsimile number as such party may hereafter specify by like notice to the other parties hereto.  All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

(m)           Severability.  If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

(n)            Interpretation.

(i)             Any reference to any national, state, local or foreign Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context otherwise required.  When a reference is made in this Agreement to a Section or Schedule, such reference shall be to a Section of or Schedule to this Agreement unless otherwise indicated.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  The words “hereof ,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.  Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and refere nces to all attachments thereto and instruments incorporated therein.  References to a Person are also to its permitted successors and assigns.  In this Agreement, the Shareholder of any Company Shares held in trust shall be deemed to be the relevant trust and/or the trustees thereof acting in their capacities as such trustees, in each case as the context may require to be most protective of Parent, including for purposes of such trustees’ representations and warranties as to the proper organization of the trust, their power and authority as trustees and the non-contravention of the trust’s governing instruments.

(ii)            The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

 
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(o)            Counterparts.  This Agreement may be executed in counterparts (each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

[Signature Pages Follow]

 
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.

 
PROSIGHT SPECIALTY INSURANCE
 
HOLDINGS, INC.
     
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President
     
     
 
PSI MERGER SUB INC.
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President


SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT

 
 
 

 
THOMAS J. IACOPELLI
     
     
 
By:
 /s/ Thomas J. Iacopelli
 
Name: Thomas J. Iacopelli


[SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT]

 
 
 

Schedule A


Shareholder
Notice Information
Shareholder Shares
Thomas J. Iacopelli
c/o NYMAGIC, INC.
919 Third Avenue
10th Floor
New York, NY 10022
50,550
 
 
EX-99.5 18 ex99_5.htm EXHIBIT 99.5 ex99_5.htm
Exhibit 99.5
 
EXECUTION COPY

SHAREHOLDERS AGREEMENT

SHAREHOLDERS AGREEMENT (this “Agreement”), dated as of July 15, 2010, by and among ProSight Specialty Insurance Holdings, Inc., a Delaware corporation (“Parent”), PSI Merger Sub Inc., a New York corporation (“Merger Sub”) and the Shareholders set forth on Schedule A (collectively, the “Shareholders”).  Capitalized terms used but not defined in this Agreement have the meanings ascribed thereto in the Merger Agreement (as defined below).

RECITALS

WHEREAS, concurrently with the execution of this Agreement, NYMAGIC, Inc., a New York corporation (the “Company”), Parent and Merger Sub are entering into an Agreement and Plan of Merger of even date herewith (a copy of which is attached hereto the “Merger Agreement”);

WHEREAS, as of the date hereof, each Shareholder is the record and beneficial owner of, and has the right to vote and dispose of, the number of Company Shares (such shares, together with any other Company Shares acquired by the Shareholders after the date hereof, whether acquired directly or indirectly, upon the exercise of options, conversion of convertible securities or otherwise, collectively, the “Shareholder Shares”) set forth next to such Shareholder’s name on Schedule A; and

WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and Merger Sub have required that the Shareholders enter into this Agreement and, in order to induce Parent and Merger Sub to enter into the Merger Agreement, the Shareholders are willing to enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1.1              Agreements of the Shareholders.

(a)            Voting.  From the date hereof until any termination of this Agreement in accordance with its terms, at any meeting of the Shareholders of the Company however called (or any action by written consent in lieu of a meeting) or any adjournment thereof, each Shareholder shall vote its Shareholder Shares (or cause them to be voted) or (as appropriate) execute written consents in respect thereof, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval of any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made, directly or indirectly, in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Transactions.  Any such vote shall be cast (or consent shall be given) by the Shareholders in accordance with such procedures relating thereto so as to ensure that it is duly counted, including for purposes of determining that a quorum is present and for purposes of recording the results of such vote (or consent) (to the fullest extent that such Shareholder Shares may be counted for quorum purposes under applicable Law).  Notwithstanding the foregoing, each of the Shareholders shall remain free to vote such Shareholder Shares with respect to any matter not covered by this Section 1(a).

 
 
 

(b)            Proxy.  In furtherance of the Shareholders’ agreement in Section 1(a), the Shareholders hereby appoint Parent and Parent’s designees, and each of them individually, as the Shareholders’ proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Shareholders, to vote all Shareholder Shares (at any meeting of Shareholders of the Company however called or any adjournment thereof), or to execute one or more written consents in respect of the Shareholder Shares, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval o f any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Merger.  Such proxy shall be valid and irrevocable until the termination of this Agreement in accordance with S ection 4.  Each Shareholder represents that any and all other proxies heretofore given in respect of Shareholder Shares are revocable, and that such other proxies have been revoked.  Each Shareholder affirms that the foregoing proxy is: (i) given (A) in connection with the execution of the Merger Agreement and (B) to secure the performance of such Shareholder’s duties under this Agreement, (ii) coupled with an interest and may not be revoked except as otherwise provided in this Agreement and (iii) intended to be irrevocable prior to termination of this Agreement in accordance with the provisions of the NYBCL.  All authority herein conferred shall survive the death or incapacity of each Shareholder and shall be binding upon the heirs, estate, administrators, personal representatives, successors and assigns of each Shareholder.

(c)            Appraisal Rights.  Each Shareholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights in connection with the Transactions.

(d)            Restriction on Transfer; Proxies; Non-Interference; etc.  From the date hereof until any termination of this Agreement in accordance with its terms, the Shareholders shall not, directly or indirectly (i) except as set forth on Schedule 1(d) hereto sell, transfer, give, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, gift, pledge, encumbrance, assignment or other disposition of, any Shareholder Shares (or any right, title or interest thereto or therein), (ii) deposit any Shareholder Shares into a voting trust or grant any p roxies or enter into a voting agreement, power of attorney or voting trust with respect to any Shareholder Shares, (iii) take any action that would make any representation or warranty of the Shareholders set forth in this Agreement untrue or incorrect in any material respect or have the effect of preventing, disabling or delaying any Shareholder from performing any of its obligations under this Agreement or (iv) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i), (ii) or (iii) of this Section 1(d).

 
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(e)            No Solicitation.  Each Shareholder agrees that, except as permitted by Section 5.2 of the Merger Agreement, such Shareholder shall not, directly or indirectly, (i) solicit, knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) the making of, or any inquiries regarding, a Takeover Proposal or (ii) engage in, continue or otherwise participate in any discussions or negotiations with any third party regarding a Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal.  Each Shareholder shall as promptly as reasonably practicable advise the Company in writing, and in no event later than twenty four (24) hours after receipt, if any proposal, offer or inquiry is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, such Shareholder in respect of a Takeover Proposal or potential Takeover Proposal, and shall, in such notice to  the Company, indicate the identity of the Person or group of Persons making such proposal, offer, inquiry or request and the material terms and conditions of such proposal or offer and the nature of such inquiry or request (and shall include with such notice copies of any draft agreements and financing commitment letters).

(f)             Conduct of Shareholder.  Until any termination of this Agreement in accordance with its terms, each Shareholder that is not an individual (i) shall maintain its status as duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (ii) shall not dissolve, merge or combine with any Person, or adopt any plan of complete or partial liquidation, in each case, without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed, it being agreed that Parent may withhold its consent if in its judgment the proposed action would jeopardize the benefits intended to be provided to Parent and Merger Sub under this Agreement.

(g)            Publication.  Each Shareholder (i) consents to Parent and Merger Sub publishing and disclosing each Shareholder’s identity and ownership of Company Common Stock and the nature of each Shareholder’s commitments, arrangements and understandings under this Agreement, in each case, that Parent reasonably determines is required to be disclosed under applicable Law in any press release, the Proxy Statement (including all schedules and documents filed with the SEC) or any other disclosure document in connection with the Merger and any other Transactions and (ii) agrees to give promptly to Parent any information Parent may reasonably require for the preparation of any such disclosure documents.  Each Shareholder agrees to promptly notify the Com pany of any required corrections with respect to any information supplied by such Shareholder specifically for use in any such disclosure document, if and to the extent that any such information shall have become false or misleading in any material respect.  The Shareholders shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or the Transactions without the prior written consent of Parent, except as may be required by applicable Law.

 
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Section 1.2              Representations and Warranties of Parent.

(a)            Organization; Authority.  Parent hereby represents and warrants to each Shareholder that (a) Parent and Merger Sub are corporations duly organized, validly existing and in good standing under the laws of the jurisdiction of their organization, (b) Parent and Merger Sub have all necessary corporate power and authority to execute and deliver this Agreement and to perform their respective obligations hereunder, (c) the execution, delivery and performance by Parent and Merger Sub of this Agreement and, subject to the terms and conditions of the Merger Agreement, the consummation by Parent and Merger Sub of the transactions contemplated hereby, have been duly authorized by all necessary action on the part of Parent and Merger Sub and (d) this Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Shareholders, constitutes a legal, valid and binding obligation of Parent and Merger Sub, enforceable against each of them in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by Parent or Merger Sub of their obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, indivi dually or in the aggregate, reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.  Neither the execution and delivery of this Agreement by Parent and Merger Sub, nor the consummation by Parent and Merger Sub of the transactions contemplated hereby, nor compliance by Parent and Merger Sub with any of the terms or provisions hereof will, (i) violate or conflict with any provision of the organizational documents of Parent or Merger Sub or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to Parent or Merger Sub or any Subsidiary of Parent or Merger Sub or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, Parent or Merger Sub or any of their Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which Parent or Merger Sub or any of their Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.

 
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Section 1.3     Representations and Warranties of the Shareholders.  Each Shareholder hereby represents and warrants to Parent and Merger Sub as follows:

(a)            Organization; Authority.  Each Shareholder that is a corporation, partnership, limited liability company, trust or other entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.  If such Shareholder is not an individual, it has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder.  The execution, delivery and performance by each Shareholder of this Agreement and the transactions contemplated hereby have been duly authorized and approved by all necessary action on the part of each Shareholder and no further action on the part of any Shareholder is necessar y to authorize the execution and delivery by each Shareholder of this Agreement or the performance by each Shareholder of its obligations hereunder.  This Agreement has been duly executed and delivered by each Shareholder and, assuming due and valid authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a valid and binding obligation of each Shareholder, enforceable against each Shareholder in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by any Shareholder of its obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and other than such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, in dividually or in the aggregate, reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.  Neither the execution and delivery of this Agreement by each Shareholder, nor the consummation by each Shareholder of the transactions contemplated hereby, nor compliance by each Shareholder with any of the terms or provisions hereof will, (i) if such Shareholder is not an individual, violate or conflict with any provision of the organizational documents of any Shareholder or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to any Shareholder or any Subsidiary of a Shareholder that is not an individual or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of t ermination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, any Shareholder or, if such Shareholder is not an individual, any of its Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which any Shareholder, or, if such Shareholder is not an individual, any of its Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.

 
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(c)            Ownership of Shares.  Each Shareholder owns, beneficially and of record, that number of Shareholder Shares as set forth next to such Shareholder’s name on Schedule A (as may be subject to adjustment as set forth in Section 5(c)).  The Shareholders own the Shareholder Shares free and clear of any proxy, voting restriction, adverse claim or other Lien (other than proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of t he United States).  Without limiting the foregoing, except for proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States, each Shareholder has sole voting power and sole power of disposition with respect to its Shareholder Shares, with no restrictions on any Shareholders’ rights of voting or disposition pertaining thereto and no Person other than the Shareholders has any right to direct or approve the voting or disposition of any Shareholder Shares.  As of the date hereof, the Shareholders do not own, beneficially or of record, any securities of the Company other than those set forth on Schedule A which constitute Shareholder Shares.

(d)            Brokers.  No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission that is payable by the Company, Parent or any of their respective Subsidiaries in connection with the Transactions based upon arrangements made by or on behalf of any Shareholder.

(e)            Absence of Litigation.  With respect to any Shareholder, there is no pending or, to the knowledge of such Shareholder, threatened, legal, administrative, arbitral or other proceeding, claim, suit or action against, or governmental or regulatory investigation of, such Shareholder or any of its, his or her properties or assets (including such Shareholder’s Shareholder Shares), nor is there any injunction, order, judgment, ruling or decree imposed (or, to the knowledge of the Shareholder, threatened to be imposed) upon the Shareholder or any of its Subsidiaries or the assets of the Shareholder or any of its Subsidiaries, by or before any Governmental Authority, that could reasonably be expect ed to impair the ability of such Shareholder to perform his or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(f)             Opportunity to Review; Reliance.  Each Shareholder has had the opportunity to review this Agreement and the Merger Agreement with counsel of his or its own choosing.  Each Shareholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon such Shareholder’s execution, delivery and performance of this Agreement.

Section 1.4              Termination.  This Agreement and the proxy granted pursuant to Section 1(b) hereof shall terminate on the first to occur of the (a) Effective Time, (b) April 15, 2011 (c) termination of the Merger Agreement in accordance with its terms and (d) the effectiveness of any amendment, modification, supplement to, or waiver under, the Merger Agreement which amendment, modification, supplement or waiver would reduce the amount or change the form or composition of the Merger Consideration payable in the Merger.  Notwithstanding the foregoing, (i) nothing herein shall relieve any party from liability for breach of this Agreement and (ii) the provisions of this Section 4, Section 5 and the above Recitals, shall survive any termination of this Agreement.

 
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Section 1.5              Miscellaneous.

(a)            Action in Shareholder Capacity Only.   The parties acknowledge that this Agreement is entered into by each Shareholder in his, her or its capacity as owner of Shareholder Shares and that nothing in this Agreement shall in any way restrict or limit any actions taken by the Shareholders in any other capacity including without limitation as a director, officer, employee or agent of the Company.

(b)            Expenses.  All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

(c)            Additional Shares.  Until any termination of this Agreement in accordance with its terms, each Shareholder shall promptly notify Parent of the number of shares, if any, as to which such Shareholder acquires record or beneficial ownership after the date hereof.  Any shares as to which any Shareholder acquires record or beneficial ownership after the date hereof and prior to termination of this Agreement shall be Shareholder Shares for purposes of this Agreement.  Without limiting the foregoing, in the event of any stock split, stock dividend or other change in the capital structure of the Company affecting the Company Shares, the number of shares constituting Shareholder Share s shall be adjusted appropriately and this Agreement and the obligations hereunder shall attach to any additional shares of Company Shares or other voting securities of the Company issued to any Shareholder in connection therewith.

(d)            Definition of “Beneficial Ownership”.  For purposes of this Agreement, “beneficial ownership” with respect to (or to “own beneficially”) any securities shall mean having “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any agreement, arrangement or understanding, whether or not in writing.

(e)            Further Assurances.  From time to time, at the request of Parent and without further consideration, each Shareholder shall execute and deliver such additional documents and take all such further action as may be reasonably required to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.

(f)             Amendments; Waiver.  This Agreement may not be amended or supplemented, except by a written agreement executed by each of the parties hereto.  At any time prior to the termination of this Agreement, any party to this Agreement may, subject to applicable Law, (i) waive any inaccuracies in the representations and warranties of any other party hereto, (ii) extend the time for the performance of any of the obligations or acts of any other party hereto or (iii) waive compliance by the other party with any of the agreements contained herein.  Notwithstanding the foregoing, no failure or delay by any party to this Agreement in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right hereunder.  Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.

 
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(g)            Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, any of the parties without the prior written consent of the other parties.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.  No past, present or future director, officer, employee, incorporator, member, partner or stockholder of Parent shall have any liability for any obligations of Parent under this Agreement or for any claim based on, in respect of, or by reason of , the Transactions.  Any purported assignment not permitted under this Section 5(g) shall be null and void.

(h)            Entire Agreement.  This Agreement (including the schedules hereto) constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

(i)             No Third Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties hereto (and their respective successors and permitted assigns) any right or remedy of any nature whatsoever under or by reason of this Agreement.

(j)             Governing Law; Enforcement; Jurisdiction; Waiver of Jury Trial.

(i)             This Agreement, and any other agreement, document or instrument delivered pursuant hereto, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement (or such other document) or the negotiation, execution, termination, performance or nonperformance of this Agreement (or such other document) (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by the internal laws of the State of New York, without regard to its conflicts of law principles.

(ii)            All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in the Agreed Courts, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.  The consents to jurisdiction set forth in this paragraph shall not constitute general consents to service of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto.  The parties her eto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

 
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(iii)           EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(k)            Specific Enforcement.  The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages.  It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, and to enforce specifically the terms and provisions of this Agreement in the Agreed Courts, this being in addition to any other remedy to which they are entitled at law or in equity.

(l)             Notices.  All notices, requests and other communications to any party hereunder shall be in writing (including email and facsimile transmission) and shall be given:

If to Parent or Merger Sub, to:

c/o Goldman, Sachs & Co.
200 West Street
New York, New York 10282-2198
Attention: Sumit Rajpal
Facsimile: 212-357-5505
Email: sumit.rajpal@gs.com

and to:

c/o TPG Capital, L.P.
345 California Street, Suite 3300
San Francisco, CA 94104
Attention: Ronald Cami
Facsimile: 415-743-1501

with a copy (which shall not constitute notice) to:

Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York  10153
Attention:  Michael J. Aiello
                    Joseph T. Verdesca, Jr.
Facsimile:  (212) 310-8007
Email: michael.aiello@weil.com
           joseph.verdesca@weil.com

If to a Shareholder, to his, her or its address set forth on Schedule A.

 
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or such other address, email address or facsimile number as such party may hereafter specify by like notice to the other parties hereto.  All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

(m)           Severability.  If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

(n)            Interpretation.

(i)             Any reference to any national, state, local or foreign Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context otherwise required.  When a reference is made in this Agreement to a Section or Schedule, such reference shall be to a Section of or Schedule to this Agreement unless otherwise indicated.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  The words “hereof ,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.  Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and refere nces to all attachments thereto and instruments incorporated therein.  References to a Person are also to its permitted successors and assigns.  In this Agreement, the Shareholder of any Company Shares held in trust shall be deemed to be the relevant trust and/or the trustees thereof acting in their capacities as such trustees, in each case as the context may require to be most protective of Parent, including for purposes of such trustees’ representations and warranties as to the proper organization of the trust, their power and authority as trustees and the non-contravention of the trust’s governing instruments.

(ii)            The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

 
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(o)            Counterparts.  This Agreement may be executed in counterparts (each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

[Signature Pages Follow]

 
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.


 
PROSIGHT SPECIALTY INSURANCE
 
HOLDINGS, INC.
     
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President
     
     
 
PSI MERGER SUB INC.
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President


SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT

 
 
 

 
A. GEORGE KALLOP
     
 
By:
 /s/ A. George Kallop
 
Name: A. George Kallop
     
     
 
ELIZABETH B. KALLOP
     
     
 
By:
 /s/ Elizabeth B. Kallop
 
Name: Elizabeth B. Kallop


[SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT]

 
 
 

Schedule A


Shareholder
Notice Information
Shareholder Shares
A. George Kallop and
 
Elizabeth B. Kallop
c/o NYMAGIC, INC.
919 Third Avenue
10th Floor
New York, NY 10022
228,875
 
 
EX-99.6 19 ex99_6.htm EXHIBIT 99.6 ex99_6.htm
Exhibit 99.6
 
EXECUTION COPY

SHAREHOLDERS AGREEMENT

SHAREHOLDERS AGREEMENT (this “Agreement”), dated as of July 15, 2010, by and among ProSight Specialty Insurance Holdings, Inc., a Delaware corporation (“Parent”), PSI Merger Sub Inc., a New York corporation (“Merger Sub”) and the Shareholders set forth on Schedule A (collectively, the “Shareholders”).  Capitalized terms used but not defined in this Agreement have the meanings ascribed thereto in the Merger Agreement (as defined below).

RECITALS

WHEREAS, concurrently with the execution of this Agreement, NYMAGIC, Inc., a New York corporation (the “Company”), Parent and Merger Sub are entering into an Agreement and Plan of Merger of even date herewith (a copy of which is attached hereto the “Merger Agreement”);

WHEREAS, as of the date hereof, each Shareholder is the record and beneficial owner of, and has the right to vote and dispose of, the number of Company Shares (such shares, together with any other Company Shares acquired by the Shareholders after the date hereof, whether acquired directly or indirectly, upon the exercise of options, conversion of convertible securities or otherwise, collectively, the “Shareholder Shares”) set forth next to such Shareholder’s name on Schedule A; and

WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and Merger Sub have required that the Shareholders enter into this Agreement and, in order to induce Parent and Merger Sub to enter into the Merger Agreement, the Shareholders are willing to enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1.1              Agreements of the Shareholders.

(a)            Voting.  From the date hereof until any termination of this Agreement in accordance with its terms, at any meeting of the Shareholders of the Company however called (or any action by written consent in lieu of a meeting) or any adjournment thereof, each Shareholder shall vote its Shareholder Shares (or cause them to be voted) or (as appropriate) execute written consents in respect thereof, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval of any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made, directly or indirectly, in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Transactions.  Any such vote shall be cast (or consent shall be given) by the Shareholders in accordance with such procedures relating thereto so as to ensure that it is duly counted, including for purposes of determining that a quorum is present and for purposes of recording the results of such vote (or consent) (to the fullest extent that such Shareholder Shares may be counted for quorum purposes under applicable Law).  Notwithstanding the foregoing, each of the Shareholders shall remain free to vote such Shareholder Shares with respect to any matter not covered by this Section 1(a).

 
 
 

(b)            Proxy.  In furtherance of the Shareholders’ agreement in Section 1(a), the Shareholders hereby appoint Parent and Parent’s designees, and each of them individually, as the Shareholders’ proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Shareholders, to vote all Shareholder Shares (at any meeting of Shareholders of the Company however called or any adjournment thereof), or to execute one or more written consents in respect of the Shareholder Shares, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval o f any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Merger.  Such proxy shall be valid and irrevocable until the termination of this Agreement in accordance with S ection 4.  Each Shareholder represents that any and all other proxies heretofore given in respect of Shareholder Shares are revocable, and that such other proxies have been revoked.  Each Shareholder affirms that the foregoing proxy is: (i) given (A) in connection with the execution of the Merger Agreement and (B) to secure the performance of such Shareholder’s duties under this Agreement, (ii) coupled with an interest and may not be revoked except as otherwise provided in this Agreement and (iii) intended to be irrevocable prior to termination of this Agreement in accordance with the provisions of the NYBCL.  All authority herein conferred shall survive the death or incapacity of each Shareholder and shall be binding upon the heirs, estate, administrators, personal representatives, successors and assigns of each Shareholder.

(c)            Appraisal Rights.  Each Shareholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights in connection with the Transactions.

(d)            Restriction on Transfer; Proxies; Non-Interference; etc.  From the date hereof until any termination of this Agreement in accordance with its terms, the Shareholders shall not, directly or indirectly (i) except as set forth on Schedule 1(d) hereto sell, transfer, give, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, gift, pledge, encumbrance, assignment or other disposition of, any Shareholder Shares (or any right, title or interest thereto or therein), (ii) deposit any Shareholder Shares into a voting trust or grant any p roxies or enter into a voting agreement, power of attorney or voting trust with respect to any Shareholder Shares, (iii) take any action that would make any representation or warranty of the Shareholders set forth in this Agreement untrue or incorrect in any material respect or have the effect of preventing, disabling or delaying any Shareholder from performing any of its obligations under this Agreement or (iv) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i), (ii) or (iii) of this Section 1(d).

 
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(e)            No Solicitation.  Each Shareholder agrees that, except as permitted by Section 5.2 of the Merger Agreement, such Shareholder shall not, directly or indirectly, (i) solicit, knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) the making of, or any inquiries regarding, a Takeover Proposal or (ii) engage in, continue or otherwise participate in any discussions or negotiations with any third party regarding a Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal.  Each Shareholder shall as promptly as reasonably practicable advise the Company in writing, and in no event later than twenty four (24) hours after receipt, if any proposal, offer or inquiry is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, such Shareholder in respect of a Takeover Proposal or potential Takeover Proposal, and shall, in such notice to  the Company, indicate the identity of the Person or group of Persons making such proposal, offer, inquiry or request and the material terms and conditions of such proposal or offer and the nature of such inquiry or request (and shall include with such notice copies of any draft agreements and financing commitment letters).

(f)             Conduct of Shareholder.  Until any termination of this Agreement in accordance with its terms, each Shareholder that is not an individual (i) shall maintain its status as duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (ii) shall not dissolve, merge or combine with any Person, or adopt any plan of complete or partial liquidation, in each case, without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed, it being agreed that Parent may withhold its consent if in its judgment the proposed action would jeopardize the benefits intended to be provided to Parent and Merger Sub under this Agreement.

(g)            Publication.  Each Shareholder (i) consents to Parent and Merger Sub publishing and disclosing each Shareholder’s identity and ownership of Company Common Stock and the nature of each Shareholder’s commitments, arrangements and understandings under this Agreement, in each case, that Parent reasonably determines is required to be disclosed under applicable Law in any press release, the Proxy Statement (including all schedules and documents filed with the SEC) or any other disclosure document in connection with the Merger and any other Transactions and (ii) agrees to give promptly to Parent any information Parent may reasonably require for the preparation of any such disclosure documents.  Each Shareholder agrees to promptly notify the Com pany of any required corrections with respect to any information supplied by such Shareholder specifically for use in any such disclosure document, if and to the extent that any such information shall have become false or misleading in any material respect.  The Shareholders shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or the Transactions without the prior written consent of Parent, except as may be required by applicable Law.

 
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Section 1.2              Representations and Warranties of Parent.

(a)            Organization; Authority.  Parent hereby represents and warrants to each Shareholder that (a) Parent and Merger Sub are corporations duly organized, validly existing and in good standing under the laws of the jurisdiction of their organization, (b) Parent and Merger Sub have all necessary corporate power and authority to execute and deliver this Agreement and to perform their respective obligations hereunder, (c) the execution, delivery and performance by Parent and Merger Sub of this Agreement and, subject to the terms and conditions of the Merger Agreement, the consummation by Parent and Merger Sub of the transactions contemplated hereby, have been duly authorized by all necessary action on the part of Parent and Merger Sub and (d) this Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Shareholders, constitutes a legal, valid and binding obligation of Parent and Merger Sub, enforceable against each of them in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by Parent or Merger Sub of their obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, indivi dually or in the aggregate, reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.  Neither the execution and delivery of this Agreement by Parent and Merger Sub, nor the consummation by Parent and Merger Sub of the transactions contemplated hereby, nor compliance by Parent and Merger Sub with any of the terms or provisions hereof will, (i) violate or conflict with any provision of the organizational documents of Parent or Merger Sub or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to Parent or Merger Sub or any Subsidiary of Parent or Merger Sub or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, Parent or Merger Sub or any of their Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which Parent or Merger Sub or any of their Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.

 
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Section 1.3     Representations and Warranties of the Shareholders.  Each Shareholder hereby represents and warrants to Parent and Merger Sub as follows:

(a)            Organization; Authority.  Each Shareholder that is a corporation, partnership, limited liability company, trust or other entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.  If such Shareholder is not an individual, it has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder.  The execution, delivery and performance by each Shareholder of this Agreement and the transactions contemplated hereby have been duly authorized and approved by all necessary action on the part of each Shareholder and no further action on the part of any Shareholder is necessar y to authorize the execution and delivery by each Shareholder of this Agreement or the performance by each Shareholder of its obligations hereunder.  This Agreement has been duly executed and delivered by each Shareholder and, assuming due and valid authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a valid and binding obligation of each Shareholder, enforceable against each Shareholder in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by any Shareholder of its obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and other than such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, in dividually or in the aggregate, reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.  Neither the execution and delivery of this Agreement by each Shareholder, nor the consummation by each Shareholder of the transactions contemplated hereby, nor compliance by each Shareholder with any of the terms or provisions hereof will, (i) if such Shareholder is not an individual, violate or conflict with any provision of the organizational documents of any Shareholder or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to any Shareholder or any Subsidiary of a Shareholder that is not an individual or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of t ermination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, any Shareholder or, if such Shareholder is not an individual, any of its Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which any Shareholder, or, if such Shareholder is not an individual, any of its Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.

 
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(c)            Ownership of Shares.  Each Shareholder owns, beneficially and of record, that number of Shareholder Shares as set forth next to such Shareholder’s name on Schedule A (as may be subject to adjustment as set forth in Section 5(c)).  The Shareholders own the Shareholder Shares free and clear of any proxy, voting restriction, adverse claim or other Lien (other than proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of t he United States).  Without limiting the foregoing, except for proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States, each Shareholder has sole voting power and sole power of disposition with respect to its Shareholder Shares, with no restrictions on any Shareholders’ rights of voting or disposition pertaining thereto and no Person other than the Shareholders has any right to direct or approve the voting or disposition of any Shareholder Shares.  As of the date hereof, the Shareholders do not own, beneficially or of record, any securities of the Company other than those set forth on Schedule A which constitute Shareholder Shares.

(d)            Brokers.  No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission that is payable by the Company, Parent or any of their respective Subsidiaries in connection with the Transactions based upon arrangements made by or on behalf of any Shareholder.

(e)            Absence of Litigation.  With respect to any Shareholder, there is no pending or, to the knowledge of such Shareholder, threatened, legal, administrative, arbitral or other proceeding, claim, suit or action against, or governmental or regulatory investigation of, such Shareholder or any of its, his or her properties or assets (including such Shareholder’s Shareholder Shares), nor is there any injunction, order, judgment, ruling or decree imposed (or, to the knowledge of the Shareholder, threatened to be imposed) upon the Shareholder or any of its Subsidiaries or the assets of the Shareholder or any of its Subsidiaries, by or before any Governmental Authority, that could reasonably be expect ed to impair the ability of such Shareholder to perform his or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(f)             Opportunity to Review; Reliance.  Each Shareholder has had the opportunity to review this Agreement and the Merger Agreement with counsel of his or its own choosing.  Each Shareholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon such Shareholder’s execution, delivery and performance of this Agreement.

Section 1.4              Termination.  This Agreement and the proxy granted pursuant to Section 1(b) hereof shall terminate on the first to occur of the (a) Effective Time, (b) April 15, 2011 (c) termination of the Merger Agreement in accordance with its terms and (d) the effectiveness of any amendment, modification, supplement to, or waiver under, the Merger Agreement which amendment, modification, supplement or waiver would reduce the amount or change the form or composition of the Merger Consideration payable in the Merger.  Notwithstanding the foregoing, (i) nothing herein shall relieve any party from liability for breach of this Agreement and (ii) the provisions of this Section 4, Section 5 and the above Recitals, shall survive any termination of this Agreement.

 
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Section 1.5              Miscellaneous.

(a)            Action in Shareholder Capacity Only.   The parties acknowledge that this Agreement is entered into by each Shareholder in his, her or its capacity as owner of Shareholder Shares and that nothing in this Agreement shall in any way restrict or limit any actions taken by the Shareholders in any other capacity including without limitation as a director, officer, employee or agent of the Company.

(b)            Expenses.  All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

(c)            Additional Shares.  Until any termination of this Agreement in accordance with its terms, each Shareholder shall promptly notify Parent of the number of shares, if any, as to which such Shareholder acquires record or beneficial ownership after the date hereof.  Any shares as to which any Shareholder acquires record or beneficial ownership after the date hereof and prior to termination of this Agreement shall be Shareholder Shares for purposes of this Agreement.  Without limiting the foregoing, in the event of any stock split, stock dividend or other change in the capital structure of the Company affecting the Company Shares, the number of shares constituting Shareholder Share s shall be adjusted appropriately and this Agreement and the obligations hereunder shall attach to any additional shares of Company Shares or other voting securities of the Company issued to any Shareholder in connection therewith.

(d)            Definition of “Beneficial Ownership”.  For purposes of this Agreement, “beneficial ownership” with respect to (or to “own beneficially”) any securities shall mean having “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any agreement, arrangement or understanding, whether or not in writing.

(e)            Further Assurances.  From time to time, at the request of Parent and without further consideration, each Shareholder shall execute and deliver such additional documents and take all such further action as may be reasonably required to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.

(f)             Amendments; Waiver.  This Agreement may not be amended or supplemented, except by a written agreement executed by each of the parties hereto.  At any time prior to the termination of this Agreement, any party to this Agreement may, subject to applicable Law, (i) waive any inaccuracies in the representations and warranties of any other party hereto, (ii) extend the time for the performance of any of the obligations or acts of any other party hereto or (iii) waive compliance by the other party with any of the agreements contained herein.  Notwithstanding the foregoing, no failure or delay by any party to this Agreement in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right hereunder.  Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.

 
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(g)            Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, any of the parties without the prior written consent of the other parties.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.  No past, present or future director, officer, employee, incorporator, member, partner or stockholder of Parent shall have any liability for any obligations of Parent under this Agreement or for any claim based on, in respect of, or by reason of , the Transactions.  Any purported assignment not permitted under this Section 5(g) shall be null and void.

(h)            Entire Agreement.  This Agreement (including the schedules hereto) constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

(i)             No Third Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties hereto (and their respective successors and permitted assigns) any right or remedy of any nature whatsoever under or by reason of this Agreement.

(j)             Governing Law; Enforcement; Jurisdiction; Waiver of Jury Trial.

(i)             This Agreement, and any other agreement, document or instrument delivered pursuant hereto, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement (or such other document) or the negotiation, execution, termination, performance or nonperformance of this Agreement (or such other document) (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by the internal laws of the State of New York, without regard to its conflicts of law principles.

(ii)            All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in the Agreed Courts, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.  The consents to jurisdiction set forth in this paragraph shall not constitute general consents to service of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto.  The parties her eto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

 
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(iii)           EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(k)            Specific Enforcement.  The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages.  It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, and to enforce specifically the terms and provisions of this Agreement in the Agreed Courts, this being in addition to any other remedy to which they are entitled at law or in equity.

(l)             Notices.  All notices, requests and other communications to any party hereunder shall be in writing (including email and facsimile transmission) and shall be given:

 
If to Parent or Merger Sub, to:

c/o Goldman, Sachs & Co.
200 West Street
New York, New York 10282-2198
Attention: Sumit Rajpal
Facsimile: 212-357-5505
Email: sumit.rajpal@gs.com

 
and to:

c/o TPG Capital, L.P.
345 California Street, Suite 3300
San Francisco, CA 94104
Attention: Ronald Cami
Facsimile: 415-743-1501

with a copy (which shall not constitute notice) to:

Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York  10153
Attention:  Michael J. Aiello
                    Joseph T. Verdesca, Jr.
Facsimile:  (212) 310-8007
Email: michael.aiello@weil.com
           joseph.verdesca@weil.com

If to a Shareholder, to his, her or its address set forth on Schedule A.

 
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or such other address, email address or facsimile number as such party may hereafter specify by like notice to the other parties hereto.  All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

(m)           Severability.  If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

(n)            Interpretation.

(i)             Any reference to any national, state, local or foreign Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context otherwise required.  When a reference is made in this Agreement to a Section or Schedule, such reference shall be to a Section of or Schedule to this Agreement unless otherwise indicated.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  The words “hereof ,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.  Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and refere nces to all attachments thereto and instruments incorporated therein.  References to a Person are also to its permitted successors and assigns.  In this Agreement, the Shareholder of any Company Shares held in trust shall be deemed to be the relevant trust and/or the trustees thereof acting in their capacities as such trustees, in each case as the context may require to be most protective of Parent, including for purposes of such trustees’ representations and warranties as to the proper organization of the trust, their power and authority as trustees and the non-contravention of the trust’s governing instruments.

(ii)            The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

 
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(o)            Counterparts.  This Agreement may be executed in counterparts (each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

[Signature Pages Follow]

 
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.

 
PROSIGHT SPECIALTY INSURANCE
HOLDINGS, INC.
     
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President
     
     
 
PSI MERGER SUB INC.
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President


SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT

 
 
 

 
GEORGE R. TRUMBULL, III
     
     
 
By:
 /s/ George R. Trumbull, III
 
Name: George R. Trumbull, III


[SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT]

 
 
 

Schedule A

Shareholder
Notice Information
Shareholder Shares
George R. Trumbull, III
c/o NYMAGIC, INC.
919 Third Avenue
10th Floor
New York, NY 10022
127,495
 
 
EX-99.7 20 ex99_7.htm EXHIBIT 99.7 ex99_7.htm
Exhibit 99.7
 
EXECUTION COPY

SHAREHOLDERS AGREEMENT

SHAREHOLDERS AGREEMENT (this “Agreement”), dated as of July 15, 2010, by and among ProSight Specialty Insurance Holdings, Inc., a Delaware corporation (“Parent”), PSI Merger Sub Inc., a New York corporation (“Merger Sub”) and the Shareholders set forth on Schedule A (collectively, the “Shareholders”).  Capitalized terms used but not defined in this Agreement have the meanings ascribed thereto in the Merger Agreement (as defined below).

RECITALS

WHEREAS, concurrently with the execution of this Agreement, NYMAGIC, Inc., a New York corporation (the “Company”), Parent and Merger Sub are entering into an Agreement and Plan of Merger of even date herewith (a copy of which is attached hereto the “Merger Agreement”);

WHEREAS, as of the date hereof, each Shareholder is the record and beneficial owner of, and has the right to vote and dispose of, the number of Company Shares (such shares, together with any other Company Shares acquired by the Shareholders after the date hereof, whether acquired directly or indirectly, upon the exercise of options, conversion of convertible securities or otherwise, collectively, the “Shareholder Shares”) set forth next to such Shareholder’s name on Schedule A; and

WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and Merger Sub have required that the Shareholders enter into this Agreement and, in order to induce Parent and Merger Sub to enter into the Merger Agreement, the Shareholders are willing to enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1.1              Agreements of the Shareholders.

(a)            Voting.  From the date hereof until any termination of this Agreement in accordance with its terms, at any meeting of the Shareholders of the Company however called (or any action by written consent in lieu of a meeting) or any adjournment thereof, each Shareholder shall vote its Shareholder Shares (or cause them to be voted) or (as appropriate) execute written consents in respect thereof, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval of any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made, directly or indirectly, in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Transactions.  Any such vote shall be cast (or consent shall be given) by the Shareholders in accordance with such procedures relating thereto so as to ensure that it is duly counted, including for purposes of determining that a quorum is present and for purposes of recording the results of such vote (or consent) (to the fullest extent that such Shareholder Shares may be counted for quorum purposes under applicable Law).  Notwithstanding the foregoing, each of the Shareholders shall remain free to vote such Shareholder Shares with respect to any matter not covered by this Section 1(a).

 
 
 

(b)            Proxy.  In furtherance of the Shareholders’ agreement in Section 1(a), the Shareholders hereby appoint Parent and Parent’s designees, and each of them individually, as the Shareholders’ proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Shareholders, to vote all Shareholder Shares (at any meeting of Shareholders of the Company however called or any adjournment thereof), or to execute one or more written consents in respect of the Shareholder Shares, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval o f any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Merger.  Such proxy shall be valid and irrevocable until the termination of this Agreement in accordance with S ection 4.  Each Shareholder represents that any and all other proxies heretofore given in respect of Shareholder Shares are revocable, and that such other proxies have been revoked.  Each Shareholder affirms that the foregoing proxy is: (i) given (A) in connection with the execution of the Merger Agreement and (B) to secure the performance of such Shareholder’s duties under this Agreement, (ii) coupled with an interest and may not be revoked except as otherwise provided in this Agreement and (iii) intended to be irrevocable prior to termination of this Agreement in accordance with the provisions of the NYBCL.  All authority herein conferred shall survive the death or incapacity of each Shareholder and shall be binding upon the heirs, estate, administrators, personal representatives, successors and assigns of each Shareholder.

(c)            Appraisal Rights.  Each Shareholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights in connection with the Transactions.

(d)            Restriction on Transfer; Proxies; Non-Interference; etc.  From the date hereof until any termination of this Agreement in accordance with its terms, the Shareholders shall not, directly or indirectly (i) except as set forth on Schedule 1(d) hereto sell, transfer, give, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, gift, pledge, encumbrance, assignment or other disposition of, any Shareholder Shares (or any right, title or interest thereto or therein), (ii) deposit any Shareholder Shares into a voting trust or grant any p roxies or enter into a voting agreement, power of attorney or voting trust with respect to any Shareholder Shares, (iii) take any action that would make any representation or warranty of the Shareholders set forth in this Agreement untrue or incorrect in any material respect or have the effect of preventing, disabling or delaying any Shareholder from performing any of its obligations under this Agreement or (iv) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i), (ii) or (iii) of this Section 1(d).

 
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(e)            No Solicitation.  Each Shareholder agrees that, except as permitted by Section 5.2 of the Merger Agreement, such Shareholder shall not, directly or indirectly, (i) solicit, knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) the making of, or any inquiries regarding, a Takeover Proposal or (ii) engage in, continue or otherwise participate in any discussions or negotiations with any third party regarding a Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal.  Each Shareholder shall as promptly as reasonably practicable advise the Company in writing, and in no event later than twenty four (24) hours after receipt, if any proposal, offer or inquiry is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, such Shareholder in respect of a Takeover Proposal or potential Takeover Proposal, and shall, in such notice to  the Company, indicate the identity of the Person or group of Persons making such proposal, offer, inquiry or request and the material terms and conditions of such proposal or offer and the nature of such inquiry or request (and shall include with such notice copies of any draft agreements and financing commitment letters).

(f)             Conduct of Shareholder.  Until any termination of this Agreement in accordance with its terms, each Shareholder that is not an individual (i) shall maintain its status as duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (ii) shall not dissolve, merge or combine with any Person, or adopt any plan of complete or partial liquidation, in each case, without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed, it being agreed that Parent may withhold its consent if in its judgment the proposed action would jeopardize the benefits intended to be provided to Parent and Merger Sub under this Agreement.

(g)            Publication.  Each Shareholder (i) consents to Parent and Merger Sub publishing and disclosing each Shareholder’s identity and ownership of Company Common Stock and the nature of each Shareholder’s commitments, arrangements and understandings under this Agreement, in each case, that Parent reasonably determines is required to be disclosed under applicable Law in any press release, the Proxy Statement (including all schedules and documents filed with the SEC) or any other disclosure document in connection with the Merger and any other Transactions and (ii) agrees to give promptly to Parent any information Parent may reasonably require for the preparation of any such disclosure documents.  Each Shareholder agrees to promptly notify the Com pany of any required corrections with respect to any information supplied by such Shareholder specifically for use in any such disclosure document, if and to the extent that any such information shall have become false or misleading in any material respect.  The Shareholders shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or the Transactions without the prior written consent of Parent, except as may be required by applicable Law.

 
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Section 1.2              Representations and Warranties of Parent.

(a)            Organization; Authority.  Parent hereby represents and warrants to each Shareholder that (a) Parent and Merger Sub are corporations duly organized, validly existing and in good standing under the laws of the jurisdiction of their organization, (b) Parent and Merger Sub have all necessary corporate power and authority to execute and deliver this Agreement and to perform their respective obligations hereunder, (c) the execution, delivery and performance by Parent and Merger Sub of this Agreement and, subject to the terms and conditions of the Merger Agreement, the consummation by Parent and Merger Sub of the transactions contemplated hereby, have been duly authorized by all necessary action on the part of Parent and Merger Sub and (d) this Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Shareholders, constitutes a legal, valid and binding obligation of Parent and Merger Sub, enforceable against each of them in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by Parent or Merger Sub of their obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, indivi dually or in the aggregate, reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.  Neither the execution and delivery of this Agreement by Parent and Merger Sub, nor the consummation by Parent and Merger Sub of the transactions contemplated hereby, nor compliance by Parent and Merger Sub with any of the terms or provisions hereof will, (i) violate or conflict with any provision of the organizational documents of Parent or Merger Sub or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to Parent or Merger Sub or any Subsidiary of Parent or Merger Sub or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, Parent or Merger Sub or any of their Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which Parent or Merger Sub or any of their Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.

 
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Section 1.3     Representations and Warranties of the Shareholders.  Each Shareholder hereby represents and warrants to Parent and Merger Sub as follows:

(a)            Organization; Authority.  Each Shareholder that is a corporation, partnership, limited liability company, trust or other entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.  If such Shareholder is not an individual, it has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder.  The execution, delivery and performance by each Shareholder of this Agreement and the transactions contemplated hereby have been duly authorized and approved by all necessary action on the part of each Shareholder and no further action on the part of any Shareholder is necessar y to authorize the execution and delivery by each Shareholder of this Agreement or the performance by each Shareholder of its obligations hereunder.  This Agreement has been duly executed and delivered by each Shareholder and, assuming due and valid authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a valid and binding obligation of each Shareholder, enforceable against each Shareholder in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by any Shareholder of its obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and other than such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, in dividually or in the aggregate, reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.  Neither the execution and delivery of this Agreement by each Shareholder, nor the consummation by each Shareholder of the transactions contemplated hereby, nor compliance by each Shareholder with any of the terms or provisions hereof will, (i) if such Shareholder is not an individual, violate or conflict with any provision of the organizational documents of any Shareholder or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to any Shareholder or any Subsidiary of a Shareholder that is not an individual or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of t ermination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, any Shareholder or, if such Shareholder is not an individual, any of its Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which any Shareholder, or, if such Shareholder is not an individual, any of its Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.

 
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(c)            Ownership of Shares.  Each Shareholder owns, beneficially and of record, that number of Shareholder Shares as set forth next to such Shareholder’s name on Schedule A (as may be subject to adjustment as set forth in Section 5(c)).  The Shareholders own the Shareholder Shares free and clear of any proxy, voting restriction, adverse claim or other Lien (other than proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of t he United States).  Without limiting the foregoing, except for proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States, each Shareholder has sole voting power and sole power of disposition with respect to its Shareholder Shares, with no restrictions on any Shareholders’ rights of voting or disposition pertaining thereto and no Person other than the Shareholders has any right to direct or approve the voting or disposition of any Shareholder Shares.  As of the date hereof, the Shareholders do not own, beneficially or of record, any securities of the Company other than those set forth on Schedule A which constitute Shareholder Shares.

(d)            Brokers.  No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission that is payable by the Company, Parent or any of their respective Subsidiaries in connection with the Transactions based upon arrangements made by or on behalf of any Shareholder.

(e)            Absence of Litigation.  With respect to any Shareholder, there is no pending or, to the knowledge of such Shareholder, threatened, legal, administrative, arbitral or other proceeding, claim, suit or action against, or governmental or regulatory investigation of, such Shareholder or any of its, his or her properties or assets (including such Shareholder’s Shareholder Shares), nor is there any injunction, order, judgment, ruling or decree imposed (or, to the knowledge of the Shareholder, threatened to be imposed) upon the Shareholder or any of its Subsidiaries or the assets of the Shareholder or any of its Subsidiaries, by or before any Governmental Authority, that could reasonably be expect ed to impair the ability of such Shareholder to perform his or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(f)             Opportunity to Review; Reliance.  Each Shareholder has had the opportunity to review this Agreement and the Merger Agreement with counsel of his or its own choosing.  Each Shareholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon such Shareholder’s execution, delivery and performance of this Agreement.

Section 1.4              Termination.  This Agreement and the proxy granted pursuant to Section 1(b) hereof shall terminate on the first to occur of the (a) Effective Time, (b) April 15, 2011 (c) termination of the Merger Agreement in accordance with its terms and (d) the effectiveness of any amendment, modification, supplement to, or waiver under, the Merger Agreement which amendment, modification, supplement or waiver would reduce the amount or change the form or composition of the Merger Consideration payable in the Merger.  Notwithstanding the foregoing, (i) nothing herein shall relieve any party from liability for breach of this Agreement and (ii) the provisions of this Section 4, Section 5 and the above Recitals, shall survive any termination of this Agreement.

 
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Section 1.5              Miscellaneous.

(a)            Action in Shareholder Capacity Only.   The parties acknowledge that this Agreement is entered into by each Shareholder in his, her or its capacity as owner of Shareholder Shares and that nothing in this Agreement shall in any way restrict or limit any actions taken by the Shareholders in any other capacity including without limitation as a director, officer, employee or agent of the Company.

(b)            Expenses.  All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

(c)            Additional Shares.  Until any termination of this Agreement in accordance with its terms, each Shareholder shall promptly notify Parent of the number of shares, if any, as to which such Shareholder acquires record or beneficial ownership after the date hereof.  Any shares as to which any Shareholder acquires record or beneficial ownership after the date hereof and prior to termination of this Agreement shall be Shareholder Shares for purposes of this Agreement.  Without limiting the foregoing, in the event of any stock split, stock dividend or other change in the capital structure of the Company affecting the Company Shares, the number of shares constituting Shareholder Share s shall be adjusted appropriately and this Agreement and the obligations hereunder shall attach to any additional shares of Company Shares or other voting securities of the Company issued to any Shareholder in connection therewith.

(d)            Definition of “Beneficial Ownership”.  For purposes of this Agreement, “beneficial ownership” with respect to (or to “own beneficially”) any securities shall mean having “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any agreement, arrangement or understanding, whether or not in writing.

(e)            Further Assurances.  From time to time, at the request of Parent and without further consideration, each Shareholder shall execute and deliver such additional documents and take all such further action as may be reasonably required to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.

(f)             Amendments; Waiver.  This Agreement may not be amended or supplemented, except by a written agreement executed by each of the parties hereto.  At any time prior to the termination of this Agreement, any party to this Agreement may, subject to applicable Law, (i) waive any inaccuracies in the representations and warranties of any other party hereto, (ii) extend the time for the performance of any of the obligations or acts of any other party hereto or (iii) waive compliance by the other party with any of the agreements contained herein.  Notwithstanding the foregoing, no failure or delay by any party to this Agreement in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right hereunder.  Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.

 
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(g)            Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, any of the parties without the prior written consent of the other parties.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.  No past, present or future director, officer, employee, incorporator, member, partner or stockholder of Parent shall have any liability for any obligations of Parent under this Agreement or for any claim based on, in respect of, or by reason of , the Transactions.  Any purported assignment not permitted under this Section 5(g) shall be null and void.

(h)            Entire Agreement.  This Agreement (including the schedules hereto) constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

(i)             No Third Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties hereto (and their respective successors and permitted assigns) any right or remedy of any nature whatsoever under or by reason of this Agreement.

(j)             Governing Law; Enforcement; Jurisdiction; Waiver of Jury Trial.

(i)             This Agreement, and any other agreement, document or instrument delivered pursuant hereto, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement (or such other document) or the negotiation, execution, termination, performance or nonperformance of this Agreement (or such other document) (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by the internal laws of the State of New York, without regard to its conflicts of law principles.

(ii)            All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in the Agreed Courts, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.  The consents to jurisdiction set forth in this paragraph shall not constitute general consents to service of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto.  The parties her eto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

 
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(iii)           EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(k)            Specific Enforcement.  The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages.  It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, and to enforce specifically the terms and provisions of this Agreement in the Agreed Courts, this being in addition to any other remedy to which they are entitled at law or in equity.

(l)             Notices.  All notices, requests and other communications to any party hereunder shall be in writing (including email and facsimile transmission) and shall be given:

If to Parent or Merger Sub, to:

c/o Goldman, Sachs & Co.
200 West Street
New York, New York 10282-2198
Attention: Sumit Rajpal
Facsimile: 212-357-5505
Email: sumit.rajpal@gs.com

and to:

c/o TPG Capital, L.P.
345 California Street, Suite 3300
San Francisco, CA 94104
Attention: Ronald Cami
Facsimile: 415-743-1501

with a copy (which shall not constitute notice) to:

Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York  10153
Attention:  Michael J. Aiello
                    Joseph T. Verdesca, Jr.
Facsimile:  (212) 310-8007
Email: michael.aiello@weil.com
           joseph.verdesca@weil.com

If to a Shareholder, to his, her or its address set forth on Schedule A.

 
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or such other address, email address or facsimile number as such party may hereafter specify by like notice to the other parties hereto.  All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

(m)           Severability.  If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

(n)            Interpretation.

(i)             Any reference to any national, state, local or foreign Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context otherwise required.  When a reference is made in this Agreement to a Section or Schedule, such reference shall be to a Section of or Schedule to this Agreement unless otherwise indicated.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  The words “hereof ,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.  Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and refere nces to all attachments thereto and instruments incorporated therein.  References to a Person are also to its permitted successors and assigns.  In this Agreement, the Shareholder of any Company Shares held in trust shall be deemed to be the relevant trust and/or the trustees thereof acting in their capacities as such trustees, in each case as the context may require to be most protective of Parent, including for purposes of such trustees’ representations and warranties as to the proper organization of the trust, their power and authority as trustees and the non-contravention of the trust’s governing instruments.

(ii)            The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

 
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(o)            Counterparts.  This Agreement may be executed in counterparts (each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

[Signature Pages Follow]

 
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.

 
PROSIGHT SPECIALTY INSURANCE
 
HOLDINGS, INC.
     
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President
     
     
 
PSI MERGER SUB INC.
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President


SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT

 
 
 

 
CONNING CAPITAL PARTNERS VI, L.P.
     
 
by its General Partner,
 
Conning Investment Partners VI, L.P.,
 
by its Managing Member
 
CCP Equity Partners VI GPGP, LLC
     
     
 
By:
 /s/ David W. Young
 
Name: David W. Young
 
Title: Manager Member


[SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT]

 
 
 

Schedule A


Shareholder
Notice Information
Shareholder Shares
Conning Capital Partners VI, L.P.
100 Pearl Street, 17th Floor
Hartford, CT 06103
900,000
 
 
EX-99.8 21 ex99_8.htm EXHIBIT 99.8 ex99_8.htm
Exhibit 99.8
 
EXECUTION COPY

SHAREHOLDERS AGREEMENT

SHAREHOLDERS AGREEMENT (this “Agreement”), dated as of July 15, 2010, by and among ProSight Specialty Insurance Holdings, Inc., a Delaware corporation (“Parent”), PSI Merger Sub Inc., a New York corporation (“Merger Sub”) and the Shareholders set forth on Schedule A (collectively, the “Shareholders”).  Capitalized terms used but not defined in this Agreement have the meanings ascribed thereto in the Merger Agreement (as defined below).

RECITALS

WHEREAS, concurrently with the execution of this Agreement, NYMAGIC, Inc., a New York corporation (the “Company”), Parent and Merger Sub are entering into an Agreement and Plan of Merger of even date herewith (a copy of which is attached hereto the “Merger Agreement”);

WHEREAS, as of the date hereof, each Shareholder is the record and beneficial owner of, and has the right to vote and dispose of, the number of Company Shares (such shares, together with any other Company Shares acquired by the Shareholders after the date hereof, whether acquired directly or indirectly, upon the exercise of options, conversion of convertible securities or otherwise, collectively, the “Shareholder Shares”) set forth next to such Shareholder’s name on Schedule A; and

WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and Merger Sub have required that the Shareholders enter into this Agreement and, in order to induce Parent and Merger Sub to enter into the Merger Agreement, the Shareholders are willing to enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1.1              Agreements of the Shareholders.

(a)            Voting.  From the date hereof until any termination of this Agreement in accordance with its terms, at any meeting of the Shareholders of the Company however called (or any action by written consent in lieu of a meeting) or any adjournment thereof, each Shareholder shall vote its Shareholder Shares (or cause them to be voted) or (as appropriate) execute written consents in respect thereof, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval of any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) ag ainst any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made, directly or indirectly, in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Transactions.  Any such vote shall be cast (or consent shall be given) by the Shareholders in accordance with such procedures relating thereto so as to ensure that it is duly counted, including for purposes of determining that a quorum is present and for purposes of recording the results of such vote (or consent) (to the fullest extent that such Shareholder Shares may be counted for quorum purposes under applicable Law).  Notwithstanding the foregoing, each of the Shareholders shall remain free to vote such Shareholder Shares with respect to any matter not covered by this Section 1(a).

 
 
 

(b)            Proxy.  In furtherance of the Shareholders’ agreement in Section 1(a), the Shareholders hereby appoint Parent and Parent’s designees, and each of them individually, as the Shareholders’ proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Shareholders, to vote all Shareholder Shares (at any meeting of Shareholders of the Company however called or any adjournment thereof), or to execute one or more written consents in respect of the Shareholder Shares, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval o f any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Merger.  Such proxy shall be valid and irrevocable until the termination of this Agreement in accordance with S ection 4.  Each Shareholder represents that any and all other proxies heretofore given in respect of Shareholder Shares are revocable, and that such other proxies have been revoked.  Each Shareholder affirms that the foregoing proxy is: (i) given (A) in connection with the execution of the Merger Agreement and (B) to secure the performance of such Shareholder’s duties under this Agreement, (ii) coupled with an interest and may not be revoked except as otherwise provided in this Agreement and (iii) intended to be irrevocable prior to termination of this Agreement in accordance with the provisions of the NYBCL.  All authority herein conferred shall survive the death or incapacity of each Shareholder and shall be binding upon the heirs, estate, administrators, personal representatives, successors and assigns of each Shareholder.

(c)            Appraisal Rights.  Each Shareholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights in connection with the Transactions.

(d)            Restriction on Transfer; Proxies; Non-Interference; etc.  From the date hereof until any termination of this Agreement in accordance with its terms, the Shareholders shall not, directly or indirectly (i) except as set forth on Schedule 1(d) hereto sell, transfer, give, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, gift, pledge, encumbrance, assignment or other disposition of, any Shareholder Shares (or any right, title or interest thereto or therein), (ii) deposit any Shareholder Shares into a voting trust or grant any p roxies or enter into a voting agreement, power of attorney or voting trust with respect to any Shareholder Shares, (iii) take any action that would make any representation or warranty of the Shareholders set forth in this Agreement untrue or incorrect in any material respect or have the effect of preventing, disabling or delaying any Shareholder from performing any of its obligations under this Agreement or (iv) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i), (ii) or (iii) of this Section 1(d).

 
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(e)            No Solicitation.  Each Shareholder agrees that, except as permitted by Section 5.2 of the Merger Agreement, such Shareholder shall not, directly or indirectly, (i) solicit, knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) the making of, or any inquiries regarding, a Takeover Proposal or (ii) engage in, continue or otherwise participate in any discussions or negotiations with any third party regarding a Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal.  Each Shareholder shall as promptly as reasonably practicable advise the Company in writing, and in no event later than twenty four (24) hours after receipt, if any proposal, offer or inquiry is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, such Shareholder in respect of a Takeover Proposal or potential Takeover Proposal, and shall, in such notice to  the Company, indicate the identity of the Person or group of Persons making such proposal, offer, inquiry or request and the material terms and conditions of such proposal or offer and the nature of such inquiry or request (and shall include with such notice copies of any draft agreements and financing commitment letters).

(f)             Conduct of Shareholder.  Until any termination of this Agreement in accordance with its terms, each Shareholder that is not an individual (i) shall maintain its status as duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (ii) shall not dissolve, merge or combine with any Person, or adopt any plan of complete or partial liquidation, in each case, without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed, it being agreed that Parent may withhold its consent if in its judgment the proposed action would jeopardize the benefits intended to be provided to Parent and Merger Sub under this Agreement.

(g)            Publication.  Each Shareholder (i) consents to Parent and Merger Sub publishing and disclosing each Shareholder’s identity and ownership of Company Common Stock and the nature of each Shareholder’s commitments, arrangements and understandings under this Agreement, in each case, that Parent reasonably determines is required to be disclosed under applicable Law in any press release, the Proxy Statement (including all schedules and documents filed with the SEC) or any other disclosure document in connection with the Merger and any other Transactions and (ii) agrees to give promptly to Parent any information Parent may reasonably require for the preparation of any such disclosure documents.  Each Shareholder agrees to promptly notify the Com pany of any required corrections with respect to any information supplied by such Shareholder specifically for use in any such disclosure document, if and to the extent that any such information shall have become false or misleading in any material respect.  The Shareholders shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or the Transactions without the prior written consent of Parent, except as may be required by applicable Law.

 
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Section 1.2              Representations and Warranties of Parent.

(a)            Organization; Authority.  Parent hereby represents and warrants to each Shareholder that (a) Parent and Merger Sub are corporations duly organized, validly existing and in good standing under the laws of the jurisdiction of their organization, (b) Parent and Merger Sub have all necessary corporate power and authority to execute and deliver this Agreement and to perform their respective obligations hereunder, (c) the execution, delivery and performance by Parent and Merger Sub of this Agreement and, subject to the terms and conditions of the Merger Agreement, the consummation by Parent and Merger Sub of the transactions contemplated hereby, have been duly authorized by all necessary action on the part of Parent and Merger Sub and (d) this Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Shareholders, constitutes a legal, valid and binding obligation of Parent and Merger Sub, enforceable against each of them in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by Parent or Merger Sub of their obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, indivi dually or in the aggregate, reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.  Neither the execution and delivery of this Agreement by Parent and Merger Sub, nor the consummation by Parent and Merger Sub of the transactions contemplated hereby, nor compliance by Parent and Merger Sub with any of the terms or provisions hereof will, (i) violate or conflict with any provision of the organizational documents of Parent or Merger Sub or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to Parent or Merger Sub or any Subsidiary of Parent or Merger Sub or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, Parent or Merger Sub or any of their Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which Parent or Merger Sub or any of their Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.

 
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Section 1.3     Representations and Warranties of the Shareholders.  Each Shareholder hereby represents and warrants to Parent and Merger Sub as follows:

(a)            Organization; Authority.  Each Shareholder that is a corporation, partnership, limited liability company, trust or other entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.  If such Shareholder is not an individual, it has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder.  The execution, delivery and performance by each Shareholder of this Agreement and the transactions contemplated hereby have been duly authorized and approved by all necessary action on the part of each Shareholder and no further action on the part of any Shareholder is necessar y to authorize the execution and delivery by each Shareholder of this Agreement or the performance by each Shareholder of its obligations hereunder.  This Agreement has been duly executed and delivered by each Shareholder and, assuming due and valid authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a valid and binding obligation of each Shareholder, enforceable against each Shareholder in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by any Shareholder of its obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and other than such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, in dividually or in the aggregate, reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.  Neither the execution and delivery of this Agreement by each Shareholder, nor the consummation by each Shareholder of the transactions contemplated hereby, nor compliance by each Shareholder with any of the terms or provisions hereof will, (i) if such Shareholder is not an individual, violate or conflict with any provision of the organizational documents of any Shareholder or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to any Shareholder or any Subsidiary of a Shareholder that is not an individual or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of t ermination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, any Shareholder or, if such Shareholder is not an individual, any of its Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which any Shareholder, or, if such Shareholder is not an individual, any of its Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.

 
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(c)            Ownership of Shares.  Each Shareholder owns, beneficially and of record, that number of Shareholder Shares as set forth next to such Shareholder’s name on Schedule A (as may be subject to adjustment as set forth in Section 5(c)).  The Shareholders own the Shareholder Shares free and clear of any proxy, voting restriction, adverse claim or other Lien (other than proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of t he United States).  Without limiting the foregoing, except for proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States, each Shareholder has sole voting power and sole power of disposition with respect to its Shareholder Shares, with no restrictions on any Shareholders’ rights of voting or disposition pertaining thereto and no Person other than the Shareholders has any right to direct or approve the voting or disposition of any Shareholder Shares.  As of the date hereof, the Shareholders do not own, beneficially or of record, any securities of the Company other than those set forth on Schedule A which constitute Shareholder Shares.

(d)            Brokers.  No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission that is payable by the Company, Parent or any of their respective Subsidiaries in connection with the Transactions based upon arrangements made by or on behalf of any Shareholder.

(e)            Absence of Litigation.  With respect to any Shareholder, there is no pending or, to the knowledge of such Shareholder, threatened, legal, administrative, arbitral or other proceeding, claim, suit or action against, or governmental or regulatory investigation of, such Shareholder or any of its, his or her properties or assets (including such Shareholder’s Shareholder Shares), nor is there any injunction, order, judgment, ruling or decree imposed (or, to the knowledge of the Shareholder, threatened to be imposed) upon the Shareholder or any of its Subsidiaries or the assets of the Shareholder or any of its Subsidiaries, by or before any Governmental Authority, that could reasonably be expect ed to impair the ability of such Shareholder to perform his or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(f)             Opportunity to Review; Reliance.  Each Shareholder has had the opportunity to review this Agreement and the Merger Agreement with counsel of his or its own choosing.  Each Shareholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon such Shareholder’s execution, delivery and performance of this Agreement.

Section 1.4              Termination.  This Agreement and the proxy granted pursuant to Section 1(b) hereof shall terminate on the first to occur of the (a) Effective Time, (b) April 15, 2011 (c) termination of the Merger Agreement in accordance with its terms and (d) the effectiveness of any amendment, modification, supplement to, or waiver under, the Merger Agreement which amendment, modification, supplement or waiver would reduce the amount or change the form or composition of the Merger Consideration payable in the Merger.  Notwithstanding the foregoing, (i) nothing herein shall relieve any party from liability for breach of this Agreement and (ii) the provisions of this Section 4, Section 5 and the above Recitals, shall survive any termination of this Agreement.

 
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Section 1.5              Miscellaneous.

(a)            Action in Shareholder Capacity Only.   The parties acknowledge that this Agreement is entered into by each Shareholder in his, her or its capacity as owner of Shareholder Shares and that nothing in this Agreement shall in any way restrict or limit any actions taken by the Shareholders in any other capacity including without limitation as a director, officer, employee or agent of the Company.

(b)            Expenses.  All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

(c)            Additional Shares.  Until any termination of this Agreement in accordance with its terms, each Shareholder shall promptly notify Parent of the number of shares, if any, as to which such Shareholder acquires record or beneficial ownership after the date hereof.  Any shares as to which any Shareholder acquires record or beneficial ownership after the date hereof and prior to termination of this Agreement shall be Shareholder Shares for purposes of this Agreement.  Without limiting the foregoing, in the event of any stock split, stock dividend or other change in the capital structure of the Company affecting the Company Shares, the number of shares constituting Shareholder Share s shall be adjusted appropriately and this Agreement and the obligations hereunder shall attach to any additional shares of Company Shares or other voting securities of the Company issued to any Shareholder in connection therewith.

(d)            Definition of “Beneficial Ownership”.  For purposes of this Agreement, “beneficial ownership” with respect to (or to “own beneficially”) any securities shall mean having “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any agreement, arrangement or understanding, whether or not in writing.

(e)            Further Assurances.  From time to time, at the request of Parent and without further consideration, each Shareholder shall execute and deliver such additional documents and take all such further action as may be reasonably required to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.

(f)             Amendments; Waiver.  This Agreement may not be amended or supplemented, except by a written agreement executed by each of the parties hereto.  At any time prior to the termination of this Agreement, any party to this Agreement may, subject to applicable Law, (i) waive any inaccuracies in the representations and warranties of any other party hereto, (ii) extend the time for the performance of any of the obligations or acts of any other party hereto or (iii) waive compliance by the other party with any of the agreements contained herein.  Notwithstanding the foregoing, no failure or delay by any party to this Agreement in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right hereunder.  Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.

 
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(g)            Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, any of the parties without the prior written consent of the other parties.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.  No past, present or future director, officer, employee, incorporator, member, partner or stockholder of Parent shall have any liability for any obligations of Parent under this Agreement or for any claim based on, in respect of, or by reason of , the Transactions.  Any purported assignment not permitted under this Section 5(g) shall be null and void.

(h)            Entire Agreement.  This Agreement (including the schedules hereto) constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

(i)             No Third Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties hereto (and their respective successors and permitted assigns) any right or remedy of any nature whatsoever under or by reason of this Agreement.

(j)             Governing Law; Enforcement; Jurisdiction; Waiver of Jury Trial.

(i)             This Agreement, and any other agreement, document or instrument delivered pursuant hereto, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement (or such other document) or the negotiation, execution, termination, performance or nonperformance of this Agreement (or such other document) (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by the internal laws of the State of New York, without regard to its conflicts of law principles.

(ii)            All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in the Agreed Courts, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.  The consents to jurisdiction set forth in this paragraph shall not constitute general consents to service of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto.  The parties her eto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

 
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(iii)           EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(k)            Specific Enforcement.  The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages.  It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, and to enforce specifically the terms and provisions of this Agreement in the Agreed Courts, this being in addition to any other remedy to which they are entitled at law or in equity.

(l)             Notices.  All notices, requests and other communications to any party hereunder shall be in writing (including email and facsimile transmission) and shall be given:

If to Parent or Merger Sub, to:

c/o Goldman, Sachs & Co.
200 West Street
New York, New York 10282-2198
Attention: Sumit Rajpal
Facsimile: 212-357-5505
Email: sumit.rajpal@gs.com

and to:

c/o TPG Capital, L.P.
345 California Street, Suite 3300
San Francisco, CA 94104
Attention: Ronald Cami
Facsimile: 415-743-1501

with a copy (which shall not constitute notice) to:

Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York  10153
Attention:  Michael J. Aiello
                    Joseph T. Verdesca, Jr.
Facsimile:  (212) 310-8007
Email: michael.aiello@weil.com
           joseph.verdesca@weil.com

If to a Shareholder, to his, her or its address set forth on Schedule A.

 
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or such other address, email address or facsimile number as such party may hereafter specify by like notice to the other parties hereto.  All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

(m)           Severability.  If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

(n)            Interpretation.

(i)             Any reference to any national, state, local or foreign Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context otherwise required.  When a reference is made in this Agreement to a Section or Schedule, such reference shall be to a Section of or Schedule to this Agreement unless otherwise indicated.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  The words “hereof ,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.  Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and refere nces to all attachments thereto and instruments incorporated therein.  References to a Person are also to its permitted successors and assigns.  In this Agreement, the Shareholder of any Company Shares held in trust shall be deemed to be the relevant trust and/or the trustees thereof acting in their capacities as such trustees, in each case as the context may require to be most protective of Parent, including for purposes of such trustees’ representations and warranties as to the proper organization of the trust, their power and authority as trustees and the non-contravention of the trust’s governing instruments.

(ii)            The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

 
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(o)            Counterparts.  This Agreement may be executed in counterparts (each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

[Signature Pages Follow]

 
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.


 
PROSIGHT SPECIALTY INSURANCE HOLDINGS, INC.
     
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President
     
     
 
PSI MERGER SUB INC.
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President


SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT

 
 
 

 
ESTATE OF LOUISE B. TOLLEFSON
     
 
by Robert G. Simses, Personal
 
Representative
     
     
 
By:
 /s/ Robert G. Simses
 
Name: Robert G. Simses
 
Title: Personal Representative


[SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT]

 
 
 

Schedule A


Shareholder
Notice Information
Shareholder Shares
Estate of Louise B. Tollefson
18665 S.E. Village Circle
Tequesta, FL 33469
14,791
 
 
EX-99.9 22 ex99_9.htm EXHIBIT 99.9 ex99_9.htm
Exhibit 99.9
 
EXECUTION COPY

SHAREHOLDERS AGREEMENT

SHAREHOLDERS AGREEMENT (this “Agreement”), dated as of July 15, 2010, by and among ProSight Specialty Insurance Holdings, Inc., a Delaware corporation (“Parent”), PSI Merger Sub Inc., a New York corporation (“Merger Sub”) and the Shareholders set forth on Schedule A (collectively, the “Shareholders”).  Capitalized terms used but not defined in this Agreement have the meanings ascribed thereto in the Merger Agreement (as defined below).

RECITALS

WHEREAS, concurrently with the execution of this Agreement, NYMAGIC, Inc., a New York corporation (the “Company”), Parent and Merger Sub are entering into an Agreement and Plan of Merger of even date herewith (a copy of which is attached hereto the “Merger Agreement”);

WHEREAS, as of the date hereof, each Shareholder is the record and beneficial owner of, and has the right to vote and dispose of, the number of Company Shares (such shares, together with any other Company Shares acquired by the Shareholders after the date hereof, whether acquired directly or indirectly, upon the exercise of options, conversion of convertible securities or otherwise, collectively, the “Shareholder Shares”) set forth next to such Shareholder’s name on Schedule A; and

WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and Merger Sub have required that the Shareholders enter into this Agreement and, in order to induce Parent and Merger Sub to enter into the Merger Agreement, the Shareholders are willing to enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1.1            Agreements of the Shareholders.

(a)           Voting.  From the date hereof until any termination of this Agreement in accordance with its terms, at any meeting of the Shareholders of the Company however called (or any action by written consent in lieu of a meeting) or any adjournment thereof, each Shareholder shall vote its Shareholder Shares (or cause them to be voted) or (as appropriate) execute written consents in respect thereof, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval of any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on whic h such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made, directly or indirectly, in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Transactions.  Any such vote shall be cast (or consent shall be given) by the Shareholders in accordance with such procedures relating thereto so as to ensure that it is duly counted, including for purposes of determining that a quorum is present and for purposes of recording the results of such vote (or consent) (to the fullest extent that such Shareholder Shares may be counted for quorum purposes under applicable Law). Notwithstanding the foregoing, each of the Shareholders shall remain free to vote such Shareholder Shares with respect to any matter not covered by this Section 1(a).

 
 
 

(b)           Proxy.  In furtherance of the Shareholders’ agreement in Section 1(a), the Shareholders hereby appoint Parent and Parent’s designees, and each of them individually, as the Shareholders’ proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Shareholders, to vote all Shareholder Shares (at any meeting of Shareholders of the Company however called or any adjournment thereof), or to execute one or more written consents in respect of the Shareholder Shares, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval of any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Merger.  Such proxy shall be valid and irrevocable until the termination of this Agreement in accordance with Section 4.  Each Shareholder represents that any and all other proxies heretofore given in respect of Shareholder Shares are revocable, and that such other proxies have been revoked.  Each Shareholder affirms that the foregoing proxy is: (i) given (A) in connection with the execution of the Merger Agreement and (B) to secure the performance of such Shareholder’s duties under this Agreement, (ii) coupled with an interest and may not be revoked except as otherwise provided in this Agreement and (iii) intended to be irrevocable prior to termination of this Agreement in accordance with the provisions of the NYBCL.  All authority herein conferred shall survive the death or incapacity of each Shareholder and shall be binding upon the heirs, estate, administrators, personal representatives, successors and assigns of each Shareholder.

(c)           Appraisal Rights.  Each Shareholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights in connection with the Transactions.

(d)           Restriction on Transfer; Proxies; Non-Interference; etc.  From the date hereof until any termination of this Agreement in accordance with its terms, the Shareholders shall not, directly or indirectly (i) except as set forth on Schedule 1(d) hereto sell, transfer, give, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, gift, pledge, encumbrance, assignment or other disposition of, any Shareholder Shares (or any right, title or interest thereto or therein), (ii) deposit any Shareholder Share s into a voting trust or grant any proxies or enter into a voting agreement, power of attorney or voting trust with respect to any Shareholder Shares, (iii) take any action that would make any representation or warranty of the Shareholders set forth in this Agreement untrue or incorrect in any material respect or have the effect of preventing, disabling or delaying any Shareholder from performing any of its obligations under this Agreement or (iv) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i), (ii) or (iii) of this Section 1(d).

 
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(e)           No Solicitation.  Each Shareholder agrees that, except as permitted by Section 5.2 of the Merger Agreement, such Shareholder shall not, directly or indirectly, (i) solicit, knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) the making of, or any inquiries regarding, a Takeover Proposal or (ii) engage in, continue or otherwise participate in any discussions or negotiations with any third party regarding a Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal.  Each Shareholder shall a s promptly as reasonably practicable advise the Company in writing, and in no event later than twenty four (24) hours after receipt, if any proposal, offer or inquiry is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, such Shareholder in respect of a Takeover Proposal or potential Takeover Proposal, and shall, in such notice to  the Company, indicate the identity of the Person or group of Persons making such proposal, offer, inquiry or request and the material terms and conditions of such proposal or offer and the nature of such inquiry or request (and shall include with such notice copies of any draft agreements and financing commitment letters).

(f)            Conduct of Shareholder.  Until any termination of this Agreement in accordance with its terms, each Shareholder that is not an individual (i) shall maintain its status as duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (ii) shall not dissolve, merge or combine with any Person, or adopt any plan of complete or partial liquidation, in each case, without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed, it being agreed that Parent may withhold its consent if in its judgment the proposed action would jeopardize the benefits intended to be provided to Parent and Merger Sub under this Agreement.

(g)           Publication.  Each Shareholder (i) consents to Parent and Merger Sub publishing and disclosing each Shareholder’s identity and ownership of Company Common Stock and the nature of each Shareholder’s commitments, arrangements and understandings under this Agreement, in each case, that Parent reasonably determines is required to be disclosed under applicable Law in any press release, the Proxy Statement (including all schedules and documents filed with the SEC) or any other disclosure document in connection with the Merger and any other Transactions and (ii) agrees to give promptly to Parent any information Parent may reasonably require for the preparation of any such disclosure documents.  Each Sharehold er agrees to promptly notify the Company of any required corrections with respect to any information supplied by such Shareholder specifically for use in any such disclosure document, if and to the extent that any such information shall have become false or misleading in any material respect.  The Shareholders shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or the Transactions without the prior written consent of Parent, except as may be required by applicable Law.

 
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Section 1.2            Representations and Warranties of Parent.

(a)           Organization; Authority.  Parent hereby represents and warrants to each Shareholder that (a) Parent and Merger Sub are corporations duly organized, validly existing and in good standing under the laws of the jurisdiction of their organization, (b) Parent and Merger Sub have all necessary corporate power and authority to execute and deliver this Agreement and to perform their respective obligations hereunder, (c) the execution, delivery and performance by Parent and Merger Sub of this Agreement and, subject to the terms and conditions of the Merger Agreement, the consummation by Parent and Merger Sub of the transactions contemplated hereby, have been duly autho rized by all necessary action on the part of Parent and Merger Sub and (d) this Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Shareholders, constitutes a legal, valid and binding obligation of Parent and Merger Sub, enforceable against each of them in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)           Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by Parent or Merger Sub of their obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtain ed, made or given, would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.  Neither the execution and delivery of this Agreement by Parent and Merger Sub, nor the consummation by Parent and Merger Sub of the transactions contemplated hereby, nor compliance by Parent and Merger Sub with any of the terms or provisions hereof will, (i) violate or conflict with any provision of the organizational documents of Parent or Merger Sub or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to Parent or Merger Sub or any Subsidiary of Parent or Merger Sub or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right o f termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, Parent or Merger Sub or any of their Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which Parent or Merger Sub or any of their Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.

 
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Section 1.3            Representations and Warranties of the Shareholders.  Each Shareholder hereby represents and warrants to Parent and Merger Sub as follows:

(a)           Organization; Authority.  Each Shareholder that is a corporation, partnership, limited liability company, trust or other entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.  If such Shareholder is not an individual, it has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder.  The execution, delivery and performance by each Shareholder of this Agreement and the transactions contemplated hereby have been duly authorized and approved by all necessary action on the part of each Shareholder and no further action on the part of any Shareholder is necessary to authorize the execution and delivery by each Shareholder of this Agreement or the performance by each Shareholder of its obligations hereunder.  This Agreement has been duly executed and delivered by each Shareholder and, assuming due and valid authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a valid and binding obligation of each Shareholder, enforceable against each Shareholder in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)           Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by any Shareholder of its obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and other than such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not ob tained, made or given, would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.  Neither the execution and delivery of this Agreement by each Shareholder, nor the consummation by each Shareholder of the transactions contemplated hereby, nor compliance by each Shareholder with any of the terms or provisions hereof will, (i) if such Shareholder is not an individual, violate or conflict with any provision of the organizational documents of any Shareholder or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to any Shareholder or any Subsidiary of a Shareholder that is not an individual or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result i n the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, any Shareholder or, if such Shareholder is not an individual, any of its Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which any Shareholder, or, if such Shareholder is not an individual, any of its Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.

 
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(c)           Ownership of Shares.  Each Shareholder owns, beneficially and of record, that number of Shareholder Shares as set forth next to such Shareholder’s name on Schedule A (as may be subject to adjustment as set forth in Section 5(c)).  Except as set forth in the Amended and Restated Voting Trust Agreement with Mariner Partners, the Shareholders own the Shareholder Shares free and clear of any proxy, voting restriction, adverse claim or other Lien (other than proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions o f general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States).  Without limiting the foregoing, except for proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States, each Shareholder has sole voting power and sole power of disposition with respect to its Shareholder Shares, with no restrictions on any Shareholders’ rights of voting or disposition pertaining thereto and no Person other than the Shareholders has any right to direct or approve the voting or disposition of any Shareholder Shares.  As of the date hereof, the Shareholders do not own, beneficially or of record, any securities of the Company other than those set forth on Schedule A which constitute Shareholder Shares.

(d)           Brokers.  No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission that is payable by the Company, Parent or any of their respective Subsidiaries in connection with the Transactions based upon arrangements made by or on behalf of any Shareholder.

(e)           Absence of Litigation.  With respect to any Shareholder, there is no pending or, to the knowledge of such Shareholder, threatened, legal, administrative, arbitral or other proceeding, claim, suit or action against, or governmental or regulatory investigation of, such Shareholder or any of its, his or her properties or assets (including such Shareholder’s Shareholder Shares), nor is there any injunction, order, judgment, ruling or decree imposed (or, to the knowledge of the Shareholder, threatened to be imposed) upon the Shareholder or any of its Subsidiaries or the assets of the Shareholder or any of its Subsidiaries, by or before any Governmental Author ity, that could reasonably be expected to impair the ability of such Shareholder to perform his or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(f)           Opportunity to Review; Reliance.  Each Shareholder has had the opportunity to review this Agreement and the Merger Agreement with counsel of his or its own choosing.  Each Shareholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon such Shareholder’s execution, delivery and performance of this Agreement.

Section 1.4           Termination.  This Agreement and the proxy granted pursuant to Section 1(b) hereof shall terminate on the first to occur of the (a) Effective Time, (b) April 15, 2011 (c) termination of the Merger Agreement in accordance with its terms and (d) the effectiveness of any amendment, modification, supplement to, or waiver under, the Merger Agreement which amendment, modification, supplement or waiver would reduce the amount or change the form or composition of the Merger Consideration payable in the Merger.  Notwithstanding the foregoing, (i) nothing herein shall relieve any party fr om liability for breach of this Agreement and (ii) the provisions of this Section 4, Section 5 and the above Recitals, shall survive any termination of this Agreement.

 
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Section 1.5            Miscellaneous.

(a)           Action in Shareholder Capacity Only.   The parties acknowledge that this Agreement is entered into by each Shareholder in his, her or its capacity as owner of Shareholder Shares and that nothing in this Agreement shall in any way restrict or limit any actions taken by the Shareholders in any other capacity including without limitation as a director, officer, employee or agent of the Company.

(b)           Expenses.  All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

(c)           Additional Shares.  Until any termination of this Agreement in accordance with its terms, each Shareholder shall promptly notify Parent of the number of shares, if any, as to which such Shareholder acquires record or beneficial ownership after the date hereof.  Any shares as to which any Shareholder acquires record or beneficial ownership after the date hereof and prior to termination of this Agreement shall be Shareholder Shares for purposes of this Agreement.  Without limiting the foregoing, in the event of any stock split, stock dividend or other change in the capital structure of the Company affecting the Company Shares, the number of s hares constituting Shareholder Shares shall be adjusted appropriately and this Agreement and the obligations hereunder shall attach to any additional shares of Company Shares or other voting securities of the Company issued to any Shareholder in connection therewith.

(d)           Definition of “Beneficial Ownership”.  For purposes of this Agreement, “beneficial ownership” with respect to (or to “own beneficially”) any securities shall mean having “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any agreement, arrangement or understanding, whether or not in writing.

(e)           Further Assurances.  From time to time, at the request of Parent and without further consideration, each Shareholder shall execute and deliver such additional documents and take all such further action as may be reasonably required to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.

(f)           Amendments; Waiver.  This Agreement may not be amended or supplemented, except by a written agreement executed by each of the parties hereto.  At any time prior to the termination of this Agreement, any party to this Agreement may, subject to applicable Law, (i) waive any inaccuracies in the representations and warranties of any other party hereto, (ii) extend the time for the performance of any of the obligations or acts of any other party hereto or (iii) waive compliance by the other party with any of the agreements contained herein.  Notwithstanding the foregoing, no failure or delay by any party to this Agreement in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right hereunder.  Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.

 
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(g)           Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, any of the parties without the prior written consent of the other parties.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.  No past, present or future director, officer, employee, incorporator, member, partner or stockholder of Parent shall have any liability for any obligations of Parent under this Agreement or for any claim base d on, in respect of, or by reason of, the Transactions.  Any purported assignment not permitted under this Section 5(g) shall be null and void.

(h)           Entire Agreement.  This Agreement (including the schedules hereto) constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

(i)            No Third Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties hereto (and their respective successors and permitted assigns) any right or remedy of any nature whatsoever under or by reason of this Agreement.

(j)            Governing Law; Enforcement; Jurisdiction; Waiver of Jury Trial.

(i)           This Agreement, and any other agreement, document or instrument delivered pursuant hereto, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement (or such other document) or the negotiation, execution, termination, performance or nonperformance of this Agreement (or such other document) (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by the internal laws of the State of New York, without regard to its conflicts of law principles.

(ii)           All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in the Agreed Courts, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.  The consents to jurisdiction set forth in this paragraph shall not constitute general consents to service of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the partie s hereto.  The parties hereto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

 
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(iii)           EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(k)           Specific Enforcement.  The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages.  It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, and to enforce specifically the terms and provisions of this Agreement in the Agreed Courts, this being in addition to any other remedy to which they are entitled at law or in equity.

(l)            Notices.  All notices, requests and other communications to any party hereunder shall be in writing (including email and facsimile transmission) and shall be given:

 
If to Parent or Merger Sub, to:

c/o Goldman, Sachs & Co.
200 West Street
New York, New York 10282-2198
Attention: Sumit Rajpal
Facsimile: 212-357-5505
Email: sumit.rajpal@gs.com

 
and to:

c/o TPG Capital, L.P.
345 California Street, Suite 3300
San Francisco, CA 94104
Attention: Ronald Cami
Facsimile: 415-743-1501

with a copy (which shall not constitute notice) to:

Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York  10153
Attention:  Michael J. Aiello
Joseph T. Verdesca, Jr.
Facsimile:  (212) 310-8007
 
Email:
michael.aiello@weil.com
joseph.verdesca@weil.com

 
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If to a Shareholder, to his, her or its address set forth on Schedule A.

or such other address, email address or facsimile number as such party may hereafter specify by like notice to the other parties hereto.  All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

(m)           Severability.  If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest e xtent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

(n)           Interpretation.

(i)           Any reference to any national, state, local or foreign Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context otherwise required.  When a reference is made in this Agreement to a Section or Schedule, such reference shall be to a Section of or Schedule to this Agreement unless otherwise indicated.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  ; The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.  Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.  References to a Person are also to its permitted successors and assigns.  In this Agreement, the Shareholder of any Company Shares held in trust shall be deemed to be the relevant trust and/or the trustees thereof acting in their capacities as such trustees, in each case as the context may require to be most protective of Parent, including for purposes of such trustees’ representations and warranties as to the proper organization of the trust, their power and authority as trustees and the non-contravention of the trust’s governing instruments.

 
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(ii)           The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

(o)           Counterparts.  This Agreement may be executed in counterparts (each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

[Signature Pages Follow]

 
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.

 
PROSIGHT SPECIALTY INSURANCE HOLDINGS, INC.
   
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
   
 
Title: Vice President
   
 
PSI MERGER SUB INC.
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President
 
SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT
 
 
 
 
 
 
LIONSHEAD INVESTMENTS, LLC
   
 
by John N. Blackman, Jr., Member
   
 
By:
 /s/ John N. Blackman, Jr.
 
Name: John N. Blackman, Jr.
 
Title: Member
 
[SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT]
 
 
 

Schedule A

Shareholder
Notice Information
Shareholder Shares
Lionshead Investments, LLC
41 Wee Burn Lane
Darien, CT 06820
450,000
 
 
EX-99.10 23 ex99_10.htm EXHIBIT 99.10 ex99_10.htm
Exhibit 99.10
 
EXECUTION COPY

SHAREHOLDERS AGREEMENT

SHAREHOLDERS AGREEMENT (this “Agreement”), dated as of July 15, 2010, by and among ProSight Specialty Insurance Holdings, Inc., a Delaware corporation (“Parent”), PSI Merger Sub Inc., a New York corporation (“Merger Sub”) and the Shareholders set forth on Schedule A (collectively, the “Shareholders”).  Capitalized terms used but not defined in this Agreement have the meanings ascribed thereto in the Merger Agreement (as defined below).

RECITALS

WHEREAS, concurrently with the execution of this Agreement, NYMAGIC, Inc., a New York corporation (the “Company”), Parent and Merger Sub are entering into an Agreement and Plan of Merger of even date herewith (a copy of which is attached hereto the “Merger Agreement”);

WHEREAS, as of the date hereof, each Shareholder is the record and beneficial owner of, and has the right to vote and dispose of, the number of Company Shares (such shares, together with any other Company Shares acquired by the Shareholders after the date hereof, whether acquired directly or indirectly, upon the exercise of options, conversion of convertible securities or otherwise, collectively, the “Shareholder Shares”) set forth next to such Shareholder’s name on Schedule A; and

WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and Merger Sub have required that the Shareholders enter into this Agreement and, in order to induce Parent and Merger Sub to enter into the Merger Agreement, the Shareholders are willing to enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1.1             Agreements of the Shareholders.

(a)            Voting.  From the date hereof until any termination of this Agreement in accordance with its terms, at any meeting of the Shareholders of the Company however called (or any action by written consent in lieu of a meeting) or any adjournment thereof, each Shareholder shall vote its Shareholder Shares (or cause them to be voted) or (as appropriate) execute written consents in respect thereof, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval of any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made, directly or indirectly, in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Transactions.  Any such vote shall be cast (or consent shall be given) by the Shareholders in accordance with such procedures relating thereto so as to ensure that it is duly counted, including for purposes of determining that a quorum is present and for purposes of recording the results of such vote (or consent) (to the fullest extent that such Shareholder Shares may be counted for quorum purposes under applicable Law).  Notwithstanding the foregoing, each of the Shareholders shall remain free to vote such Shareholder Shares with respect to any matter not covered by this Section 1(a).

 
 
 

(b)            Proxy.  In furtherance of the Shareholders’ agreement in Section 1(a), the Shareholders hereby appoint Parent and Parent’s designees, and each of them individually, as the Shareholders’ proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Shareholders, to vote all Shareholder Shares (at any meeting of Shareholders of the Company however called or any adjournment thereof), or to execute one or more written consents in respect of the Shareholder Shares, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval o f any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Merger.  Such proxy shall be valid and irrevocable until the termination of this Agreement in accordance with S ection 4.  Each Shareholder represents that any and all other proxies heretofore given in respect of Shareholder Shares are revocable, and that such other proxies have been revoked.  Each Shareholder affirms that the foregoing proxy is: (i) given (A) in connection with the execution of the Merger Agreement and (B) to secure the performance of such Shareholder’s duties under this Agreement, (ii) coupled with an interest and may not be revoked except as otherwise provided in this Agreement and (iii) intended to be irrevocable prior to termination of this Agreement in accordance with the provisions of the NYBCL.  All authority herein conferred shall survive the death or incapacity of each Shareholder and shall be binding upon the heirs, estate, administrators, personal representatives, successors and assigns of each Shareholder.

(c)            Appraisal Rights.  Each Shareholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights in connection with the Transactions.

(d)            Restriction on Transfer; Proxies; Non-Interference; etc.  From the date hereof until any termination of this Agreement in accordance with its terms, the Shareholders shall not, directly or indirectly (i) except as set forth on Schedule 1(d) hereto sell, transfer, give, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, gift, pledge, encumbrance, assignment or other disposition of, any Shareholder Shares (or any right, title or interest thereto or therein), (ii) deposit any Shareholder Shares into a voting trust or grant any p roxies or enter into a voting agreement, power of attorney or voting trust with respect to any Shareholder Shares, (iii) take any action that would make any representation or warranty of the Shareholders set forth in this Agreement untrue or incorrect in any material respect or have the effect of preventing, disabling or delaying any Shareholder from performing any of its obligations under this Agreement or (iv) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i), (ii) or (iii) of this Section 1(d).

 
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(e)            No Solicitation.  Each Shareholder agrees that, except as permitted by Section 5.2 of the Merger Agreement, such Shareholder shall not, directly or indirectly, (i) solicit, knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) the making of, or any inquiries regarding, a Takeover Proposal or (ii) engage in, continue or otherwise participate in any discussions or negotiations with any third party regarding a Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal.  Each Shareholder shall as promptly as reasonably practicable advise the Company in writing, and in no event later than twenty four (24) hours after receipt, if any proposal, offer or inquiry is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, such Shareholder in respect of a Takeover Proposal or potential Takeover Proposal, and shall, in such notice to  the Company, indicate the identity of the Person or group of Persons making such proposal, offer, inquiry or request and the material terms and conditions of such proposal or offer and the nature of such inquiry or request (and shall include with such notice copies of any draft agreements and financing commitment letters).

(f)             Conduct of Shareholder.  Until any termination of this Agreement in accordance with its terms, each Shareholder that is not an individual (i) shall maintain its status as duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (ii) shall not dissolve, merge or combine with any Person, or adopt any plan of complete or partial liquidation, in each case, without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed, it being agreed that Parent may withhold its consent if in its judgment the proposed action would jeopardize the benefits intended to be provided to Parent and Merger Sub under this Agreement.

(g)            Publication.  Each Shareholder (i) consents to Parent and Merger Sub publishing and disclosing each Shareholder’s identity and ownership of Company Common Stock and the nature of each Shareholder’s commitments, arrangements and understandings under this Agreement, in each case, that Parent reasonably determines is required to be disclosed under applicable Law in any press release, the Proxy Statement (including all schedules and documents filed with the SEC) or any other disclosure document in connection with the Merger and any other Transactions and (ii) agrees to give promptly to Parent any information Parent may reasonably require for the preparation of any such disclosure documents.  Each Shareholder agrees to promptly notify the Com pany of any required corrections with respect to any information supplied by such Shareholder specifically for use in any such disclosure document, if and to the extent that any such information shall have become false or misleading in any material respect.  The Shareholders shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or the Transactions without the prior written consent of Parent, except as may be required by applicable Law.

 
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Section 1.2             Representations and Warranties of Parent.

(a)            Organization; Authority.  Parent hereby represents and warrants to each Shareholder that (a) Parent and Merger Sub are corporations duly organized, validly existing and in good standing under the laws of the jurisdiction of their organization, (b) Parent and Merger Sub have all necessary corporate power and authority to execute and deliver this Agreement and to perform their respective obligations hereunder, (c) the execution, delivery and performance by Parent and Merger Sub of this Agreement and, subject to the terms and conditions of the Merger Agreement, the consummation by Parent and Merger Sub of the transactions contemplated hereby, have been duly authorized by all necessary action on the part of Parent and Merger Sub and (d) this Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Shareholders, constitutes a legal, valid and binding obligation of Parent and Merger Sub, enforceable against each of them in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by Parent or Merger Sub of their obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, indivi dually or in the aggregate, reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.  Neither the execution and delivery of this Agreement by Parent and Merger Sub, nor the consummation by Parent and Merger Sub of the transactions contemplated hereby, nor compliance by Parent and Merger Sub with any of the terms or provisions hereof will, (i) violate or conflict with any provision of the organizational documents of Parent or Merger Sub or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to Parent or Merger Sub or any Subsidiary of Parent or Merger Sub or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, Parent or Merger Sub or any of their Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which Parent or Merger Sub or any of their Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.

 
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Section 1.3     Representations and Warranties of the Shareholders.  Each Shareholder hereby represents and warrants to Parent and Merger Sub as follows:

(a)            Organization; Authority.  Each Shareholder that is a corporation, partnership, limited liability company, trust or other entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.  If such Shareholder is not an individual, it has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder.  The execution, delivery and performance by each Shareholder of this Agreement and the transactions contemplated hereby have been duly authorized and approved by all necessary action on the part of each Shareholder and no further action on the part of any Shareholder is necessar y to authorize the execution and delivery by each Shareholder of this Agreement or the performance by each Shareholder of its obligations hereunder.  This Agreement has been duly executed and delivered by each Shareholder and, assuming due and valid authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a valid and binding obligation of each Shareholder, enforceable against each Shareholder in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by any Shareholder of its obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and other than such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, in dividually or in the aggregate, reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.  Neither the execution and delivery of this Agreement by each Shareholder, nor the consummation by each Shareholder of the transactions contemplated hereby, nor compliance by each Shareholder with any of the terms or provisions hereof will, (i) if such Shareholder is not an individual, violate or conflict with any provision of the organizational documents of any Shareholder or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to any Shareholder or any Subsidiary of a Shareholder that is not an individual or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of t ermination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, any Shareholder or, if such Shareholder is not an individual, any of its Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which any Shareholder, or, if such Shareholder is not an individual, any of its Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.

 
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(c)            Ownership of Shares.  Each Shareholder owns, beneficially and of record, that number of Shareholder Shares as set forth next to such Shareholder’s name on Schedule A (as may be subject to adjustment as set forth in Section 5(c)).  Except as set forth in the Amended and Restated Voting Trust Agreement with Mariner Partners, the Shareholders own the Shareholder Shares free and clear of any proxy, voting restriction, adverse claim or other Lien (other than proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be pr ovided under the Securities Act and the “blue sky” laws of the various states of the United States).  Without limiting the foregoing, except for proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States, each Shareholder has sole voting power and sole power of disposition with respect to its Shareholder Shares, with no restrictions on any Shareholders’ rights of voting or disposition pertaining thereto and no Person other than the Shareholders has any right to direct or approve the voting or disposition of any Shareholder Shares.  As of the date hereof, the Shareholders do not own, beneficially or of record, any securities of the Company other than those set forth on Schedule A which constitut e Shareholder Shares.

(d)            Brokers.  No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission that is payable by the Company, Parent or any of their respective Subsidiaries in connection with the Transactions based upon arrangements made by or on behalf of any Shareholder.

(e)            Absence of Litigation.  With respect to any Shareholder, there is no pending or, to the knowledge of such Shareholder, threatened, legal, administrative, arbitral or other proceeding, claim, suit or action against, or governmental or regulatory investigation of, such Shareholder or any of its, his or her properties or assets (including such Shareholder’s Shareholder Shares), nor is there any injunction, order, judgment, ruling or decree imposed (or, to the knowledge of the Shareholder, threatened to be imposed) upon the Shareholder or any of its Subsidiaries or the assets of the Shareholder or any of its Subsidiaries, by or before any Governmental Authority, that could reasonably be expect ed to impair the ability of such Shareholder to perform his or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(f)             Opportunity to Review; Reliance.  Each Shareholder has had the opportunity to review this Agreement and the Merger Agreement with counsel of his or its own choosing.  Each Shareholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon such Shareholder’s execution, delivery and performance of this Agreement.

Section 1.4              Termination.  This Agreement and the proxy granted pursuant to Section 1(b) hereof shall terminate on the first to occur of the (a) Effective Time, (b) April 15, 2011 (c) termination of the Merger Agreement in accordance with its terms and (d) the effectiveness of any amendment, modification, supplement to, or waiver under, the Merger Agreement which amendment, modification, supplement or waiver would reduce the amount or change the form or composition of the Merger Consideration payable in the Merger.  Notwithstanding the foregoing, (i) nothing herein shall relieve any party from liability for breach of this Agreement and (ii) the provisions of this Section 4, Section 5 and the above Recitals, shall survive any termination of this Agreement.

 
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Section 1.5              Miscellaneous.

(a)            Action in Shareholder Capacity Only.   The parties acknowledge that this Agreement is entered into by each Shareholder in his, her or its capacity as owner of Shareholder Shares and that nothing in this Agreement shall in any way restrict or limit any actions taken by the Shareholders in any other capacity including without limitation as a director, officer, employee or agent of the Company.

(b)            Expenses.  All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

(c)            Additional Shares.  Until any termination of this Agreement in accordance with its terms, each Shareholder shall promptly notify Parent of the number of shares, if any, as to which such Shareholder acquires record or beneficial ownership after the date hereof.  Any shares as to which any Shareholder acquires record or beneficial ownership after the date hereof and prior to termination of this Agreement shall be Shareholder Shares for purposes of this Agreement.  Without limiting the foregoing, in the event of any stock split, stock dividend or other change in the capital structure of the Company affecting the Company Shares, the number of shares constituting Shareholder Share s shall be adjusted appropriately and this Agreement and the obligations hereunder shall attach to any additional shares of Company Shares or other voting securities of the Company issued to any Shareholder in connection therewith.

(d)            Definition of “Beneficial Ownership”.  For purposes of this Agreement, “beneficial ownership” with respect to (or to “own beneficially”) any securities shall mean having “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any agreement, arrangement or understanding, whether or not in writing.

(e)            Further Assurances.  From time to time, at the request of Parent and without further consideration, each Shareholder shall execute and deliver such additional documents and take all such further action as may be reasonably required to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.

(f)             Amendments; Waiver.  This Agreement may not be amended or supplemented, except by a written agreement executed by each of the parties hereto.  At any time prior to the termination of this Agreement, any party to this Agreement may, subject to applicable Law, (i) waive any inaccuracies in the representations and warranties of any other party hereto, (ii) extend the time for the performance of any of the obligations or acts of any other party hereto or (iii) waive compliance by the other party with any of the agreements contained herein.  Notwithstanding the foregoing, no failure or delay by any party to this Agreement in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right hereunder.  Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.

 
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(g)            Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, any of the parties without the prior written consent of the other parties.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.  No past, present or future director, officer, employee, incorporator, member, partner or stockholder of Parent shall have any liability for any obligations of Parent under this Agreement or for any claim based on, in respect of, or by reason of , the Transactions.  Any purported assignment not permitted under this Section 5(g) shall be null and void.

(h)            Entire Agreement.  This Agreement (including the schedules hereto) constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

(i)             No Third Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties hereto (and their respective successors and permitted assigns) any right or remedy of any nature whatsoever under or by reason of this Agreement.

(j)             Governing Law; Enforcement; Jurisdiction; Waiver of Jury Trial.

(i)             This Agreement, and any other agreement, document or instrument delivered pursuant hereto, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement (or such other document) or the negotiation, execution, termination, performance or nonperformance of this Agreement (or such other document) (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by the internal laws of the State of New York, without regard to its conflicts of law principles.

(ii)            All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in the Agreed Courts, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.  The consents to jurisdiction set forth in this paragraph shall not constitute general consents to service of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto.  The parties her eto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

 
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(iii)           EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(k)            Specific Enforcement.  The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages.  It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, and to enforce specifically the terms and provisions of this Agreement in the Agreed Courts, this being in addition to any other remedy to which they are entitled at law or in equity.

(l)             Notices.  All notices, requests and other communications to any party hereunder shall be in writing (including email and facsimile transmission) and shall be given:

If to Parent or Merger Sub, to:

c/o Goldman, Sachs & Co.
200 West Street
New York, New York 10282-2198
Attention: Sumit Rajpal
Facsimile: 212-357-5505
Email: sumit.rajpal@gs.com

and to:

c/o TPG Capital, L.P.
345 California Street, Suite 3300
San Francisco, CA 94104
Attention: Ronald Cami
Facsimile: 415-743-1501

with a copy (which shall not constitute notice) to:

Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York  10153
Attention:  Michael J. Aiello
                    Joseph T. Verdesca, Jr.
Facsimile:  (212) 310-8007
Email: michael.aiello@weil.com
           joseph.verdesca@weil.com

 
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If to a Shareholder, to his, her or its address set forth on Schedule A.

or such other address, email address or facsimile number as such party may hereafter specify by like notice to the other parties hereto.  All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

(m)           Severability.  If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

(n)            Interpretation.

(i)             Any reference to any national, state, local or foreign Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context otherwise required.  When a reference is made in this Agreement to a Section or Schedule, such reference shall be to a Section of or Schedule to this Agreement unless otherwise indicated.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  The words “hereof ,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.  Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and refere nces to all attachments thereto and instruments incorporated therein.  References to a Person are also to its permitted successors and assigns.  In this Agreement, the Shareholder of any Company Shares held in trust shall be deemed to be the relevant trust and/or the trustees thereof acting in their capacities as such trustees, in each case as the context may require to be most protective of Parent, including for purposes of such trustees’ representations and warranties as to the proper organization of the trust, their power and authority as trustees and the non-contravention of the trust’s governing instruments.

 
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(ii)            The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

(o)            Counterparts.  This Agreement may be executed in counterparts (each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

[Signature Pages Follow]

 
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.
 
 
 
PROSIGHT SPECIALTY INSURANCE
 
HOLDINGS, INC.
     
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President
     
     
 
PSI MERGER SUB INC.
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President


SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT

 
 
 

 
LOUISE B. TOLLEFSON 2000 FLORIDA
 
INTANGIBLE TAX TRUST
     
 
by Robert G. Simses, Trustee
     
     
 
By:
 /s/ Robert G. Simses
 
Name: Robert G. Simses
 
Title: Trustee


[SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT]

 
 
 

Schedule A


Shareholder
Notice Information
Shareholder Shares
Louise B. Tollefson 2000 Florida Intangible Tax Trust
c/o Robert G. Simses, Trustee
Simses & Associates P.A.
400 Royal Palm Way, Suite 304
Palm Beach, FL 33480
864,483
 
 
EX-99.11 24 ex99_11.htm EXHIBIT 99.11 ex99_11.htm
Exhibit 99.11
 
EXECUTION COPY

SHAREHOLDERS AGREEMENT

SHAREHOLDERS AGREEMENT (this “Agreement”), dated as of July 15, 2010, by and among ProSight Specialty Insurance Holdings, Inc., a Delaware corporation (“Parent”), PSI Merger Sub Inc., a New York corporation (“Merger Sub”) and the Shareholders set forth on Schedule A (collectively, the “Shareholders”).  Capitalized terms used but not defined in this Agreement have the meanings ascribed thereto in the Merger Agreement (as defined below).

RECITALS

WHEREAS, concurrently with the execution of this Agreement, NYMAGIC, Inc., a New York corporation (the “Company”), Parent and Merger Sub are entering into an Agreement and Plan of Merger of even date herewith (a copy of which is attached hereto the “Merger Agreement”);

WHEREAS, as of the date hereof, each Shareholder is the record and beneficial owner of, and has the right to vote and dispose of, the number of Company Shares (such shares, together with any other Company Shares acquired by the Shareholders after the date hereof, whether acquired directly or indirectly, upon the exercise of options, conversion of convertible securities or otherwise, collectively, the “Shareholder Shares”) set forth next to such Shareholder’s name on Schedule A; and

WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and Merger Sub have required that the Shareholders enter into this Agreement and, in order to induce Parent and Merger Sub to enter into the Merger Agreement, the Shareholders are willing to enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1.1              Agreements of the Shareholders.

(a)            Voting.  From the date hereof until any termination of this Agreement in accordance with its terms, at any meeting of the Shareholders of the Company however called (or any action by written consent in lieu of a meeting) or any adjournment thereof, each Shareholder shall vote its Shareholder Shares (or cause them to be voted) or (as appropriate) execute written consents in respect thereof, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval of any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made, directly or indirectly, in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Transactions.  Any such vote shall be cast (or consent shall be given) by the Shareholders in accordance with such procedures relating thereto so as to ensure that it is duly counted, including for purposes of determining that a quorum is present and for purposes of recording the results of such vote (or consent) (to the fullest extent that such Shareholder Shares may be counted for quorum purposes under applicable Law).  Notwithstanding the foregoing, each of the Shareholders shall remain free to vote such Shareholder Shares with respect to any matter not covered by this Section 1(a).

 
 
 

(b)            Proxy.  In furtherance of the Shareholders’ agreement in Section 1(a), the Shareholders hereby appoint Parent and Parent’s designees, and each of them individually, as the Shareholders’ proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Shareholders, to vote all Shareholder Shares (at any meeting of Shareholders of the Company however called or any adjournment thereof), or to execute one or more written consents in respect of the Shareholder Shares, (i) in favor of (A) the adoption of the Merger Agreement and the approval of the Transactions and (B) approval o f any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for adoption and approval of the foregoing on the date on which such meeting is held, (ii) against any action or agreement (including any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Takeover Proposal or any other proposal made in opposition to adoption of the Merger Agreement or otherwise inconsistent with the Transactions and (iv) against any agreement (including any amendment of any agreement), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Merger.  Such proxy shall be valid and irrevocable until the termination of this Agreement in accordance with S ection 4.  Each Shareholder represents that any and all other proxies heretofore given in respect of Shareholder Shares are revocable, and that such other proxies have been revoked.  Each Shareholder affirms that the foregoing proxy is: (i) given (A) in connection with the execution of the Merger Agreement and (B) to secure the performance of such Shareholder’s duties under this Agreement, (ii) coupled with an interest and may not be revoked except as otherwise provided in this Agreement and (iii) intended to be irrevocable prior to termination of this Agreement in accordance with the provisions of the NYBCL.  All authority herein conferred shall survive the death or incapacity of each Shareholder and shall be binding upon the heirs, estate, administrators, personal representatives, successors and assigns of each Shareholder.

(c)            Appraisal Rights.  Each Shareholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights in connection with the Transactions.

(d)            Restriction on Transfer; Proxies; Non-Interference; etc.  From the date hereof until any termination of this Agreement in accordance with its terms, the Shareholders shall not, directly or indirectly (i) except as set forth on Schedule 1(d) hereto sell, transfer, give, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, gift, pledge, encumbrance, assignment or other disposition of, any Shareholder Shares (or any right, title or interest thereto or therein), (ii) deposit any Shareholder Shares into a voting trust or grant any p roxies or enter into a voting agreement, power of attorney or voting trust with respect to any Shareholder Shares, (iii) take any action that would make any representation or warranty of the Shareholders set forth in this Agreement untrue or incorrect in any material respect or have the effect of preventing, disabling or delaying any Shareholder from performing any of its obligations under this Agreement or (iv) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i), (ii) or (iii) of this Section 1(d).

 
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(e)            No Solicitation.  Each Shareholder agrees that, except as permitted by Section 5.2 of the Merger Agreement, such Shareholder shall not, directly or indirectly, (i) solicit, knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) the making of, or any inquiries regarding, a Takeover Proposal or (ii) engage in, continue or otherwise participate in any discussions or negotiations with any third party regarding a Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal.  Each Shareholder shall as promptly as reasonably practicable advise the Company in writing, and in no event later than twenty four (24) hours after receipt, if any proposal, offer or inquiry is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, such Shareholder in respect of a Takeover Proposal or potential Takeover Proposal, and shall, in such notice to  the Company, indicate the identity of the Person or group of Persons making such proposal, offer, inquiry or request and the material terms and conditions of such proposal or offer and the nature of such inquiry or request (and shall include with such notice copies of any draft agreements and financing commitment letters).

(f)             Conduct of Shareholder.  Until any termination of this Agreement in accordance with its terms, each Shareholder that is not an individual (i) shall maintain its status as duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (ii) shall not dissolve, merge or combine with any Person, or adopt any plan of complete or partial liquidation, in each case, without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed, it being agreed that Parent may withhold its consent if in its judgment the proposed action would jeopardize the benefits intended to be provided to Parent and Merger Sub under this Agreement.

(g)            Publication.  Each Shareholder (i) consents to Parent and Merger Sub publishing and disclosing each Shareholder’s identity and ownership of Company Common Stock and the nature of each Shareholder’s commitments, arrangements and understandings under this Agreement, in each case, that Parent reasonably determines is required to be disclosed under applicable Law in any press release, the Proxy Statement (including all schedules and documents filed with the SEC) or any other disclosure document in connection with the Merger and any other Transactions and (ii) agrees to give promptly to Parent any information Parent may reasonably require for the preparation of any such disclosure documents.  Each Shareholder agrees to promptly notify the Com pany of any required corrections with respect to any information supplied by such Shareholder specifically for use in any such disclosure document, if and to the extent that any such information shall have become false or misleading in any material respect.  The Shareholders shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or the Transactions without the prior written consent of Parent, except as may be required by applicable Law.

 
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Section 1.2              Representations and Warranties of Parent.

(a)            Organization; Authority.  Parent hereby represents and warrants to each Shareholder that (a) Parent and Merger Sub are corporations duly organized, validly existing and in good standing under the laws of the jurisdiction of their organization, (b) Parent and Merger Sub have all necessary corporate power and authority to execute and deliver this Agreement and to perform their respective obligations hereunder, (c) the execution, delivery and performance by Parent and Merger Sub of this Agreement and, subject to the terms and conditions of the Merger Agreement, the consummation by Parent and Merger Sub of the transactions contemplated hereby, have been duly authorized by all necessary action on the part of Parent and Merger Sub and (d) this Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Shareholders, constitutes a legal, valid and binding obligation of Parent and Merger Sub, enforceable against each of them in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by Parent or Merger Sub of their obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, indivi dually or in the aggregate, reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.  Neither the execution and delivery of this Agreement by Parent and Merger Sub, nor the consummation by Parent and Merger Sub of the transactions contemplated hereby, nor compliance by Parent and Merger Sub with any of the terms or provisions hereof will, (i) violate or conflict with any provision of the organizational documents of Parent or Merger Sub or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to Parent or Merger Sub or any Subsidiary of Parent or Merger Sub or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, Parent or Merger Sub or any of their Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which Parent or Merger Sub or any of their Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by Parent or Merger Sub of any of their obligations under this Agreement.

 
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Section 1.3     Representations and Warranties of the Shareholders.  Each Shareholder hereby represents and warrants to Parent and Merger Sub as follows:

(a)            Organization; Authority.  Each Shareholder that is a corporation, partnership, limited liability company, trust or other entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.  If such Shareholder is not an individual, it has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder.  The execution, delivery and performance by each Shareholder of this Agreement and the transactions contemplated hereby have been duly authorized and approved by all necessary action on the part of each Shareholder and no further action on the part of any Shareholder is necessar y to authorize the execution and delivery by each Shareholder of this Agreement or the performance by each Shareholder of its obligations hereunder.  This Agreement has been duly executed and delivered by each Shareholder and, assuming due and valid authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a valid and binding obligation of each Shareholder, enforceable against each Shareholder in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b)            Consents and Approvals; Non-Contravention.  No consents or approvals of, or filings, Permits, notifications, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by any Shareholder of its obligations under this Agreement, other than the filing with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 (as applicable) of the Exchange Act, as may be required in connection with this Agreement and the Transactions and other than such consents, approvals, filings, Permits, notifications, declarations or registrations that, if not obtained, made or given, would not, in dividually or in the aggregate, reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.  Neither the execution and delivery of this Agreement by each Shareholder, nor the consummation by each Shareholder of the transactions contemplated hereby, nor compliance by each Shareholder with any of the terms or provisions hereof will, (i) if such Shareholder is not an individual, violate or conflict with any provision of the organizational documents of any Shareholder or (ii) (x) violate any Law, judgment, writ or injunction of any Governmental Authority applicable to any Shareholder or any Subsidiary of a Shareholder that is not an individual or any of their respective properties or assets, or (y) violate, breach, conflict with, result in the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of t ermination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of, any Shareholder or, if such Shareholder is not an individual, any of its Subsidiaries, under any of the terms, conditions or provisions of any Contract or Permit to which any Shareholder, or, if such Shareholder is not an individual, any of its Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound or affected, except, in the case of clause (ii) above, for such violations, breaches, conflicts, losses, defaults, terminations, cancellations, accelerations or Liens as, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the performance by any Shareholder of any of its obligations under this Agreement.

 
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(c)            Ownership of Shares.  Each Shareholder owns, beneficially and of record, that number of Shareholder Shares as set forth next to such Shareholder’s name on Schedule A (as may be subject to adjustment as set forth in Section 5(c)).  Except as set forth in the Amended and Restated Voting Trust Agreement with Mariner Partners, the Shareholders own the Shareholder Shares free and clear of any proxy, voting restriction, adverse claim or other Lien (other than proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be pr ovided under the Securities Act and the “blue sky” laws of the various states of the United States).  Without limiting the foregoing, except for proxies and restrictions in favor of Parent and Merger Sub pursuant to this Agreement and except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States, each Shareholder has sole voting power and sole power of disposition with respect to its Shareholder Shares, with no restrictions on any Shareholders’ rights of voting or disposition pertaining thereto and no Person other than the Shareholders has any right to direct or approve the voting or disposition of any Shareholder Shares.  As of the date hereof, the Shareholders do not own, beneficially or of record, any securities of the Company other than those set forth on Schedule A which constitut e Shareholder Shares.

(d)            Brokers.  No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission that is payable by the Company, Parent or any of their respective Subsidiaries in connection with the Transactions based upon arrangements made by or on behalf of any Shareholder.

(e)            Absence of Litigation.  With respect to any Shareholder, there is no pending or, to the knowledge of such Shareholder, threatened, legal, administrative, arbitral or other proceeding, claim, suit or action against, or governmental or regulatory investigation of, such Shareholder or any of its, his or her properties or assets (including such Shareholder’s Shareholder Shares), nor is there any injunction, order, judgment, ruling or decree imposed (or, to the knowledge of the Shareholder, threatened to be imposed) upon the Shareholder or any of its Subsidiaries or the assets of the Shareholder or any of its Subsidiaries, by or before any Governmental Authority, that could reasonably be expect ed to impair the ability of such Shareholder to perform his or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(f)             Opportunity to Review; Reliance.  Each Shareholder has had the opportunity to review this Agreement and the Merger Agreement with counsel of his or its own choosing.  Each Shareholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon such Shareholder’s execution, delivery and performance of this Agreement.

Section 1.4              Termination.  This Agreement and the proxy granted pursuant to Section 1(b) hereof shall terminate on the first to occur of the (a) Effective Time, (b) April 15, 2011 (c) termination of the Merger Agreement in accordance with its terms and (d) the effectiveness of any amendment, modification, supplement to, or waiver under, the Merger Agreement which amendment, modification, supplement or waiver would reduce the amount or change the form or composition of the Merger Consideration payable in the Merger.  Notwithstanding the foregoing, (i) nothing herein shall relieve any party from liability for breach of this Agreement and (ii) the provisions of this Section 4, Section 5 and the above Recitals, shall survive any termination of this Agreement.

 
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Section 1.5              Miscellaneous.

(a)            Action in Shareholder Capacity Only.   The parties acknowledge that this Agreement is entered into by each Shareholder in his, her or its capacity as owner of Shareholder Shares and that nothing in this Agreement shall in any way restrict or limit any actions taken by the Shareholders in any other capacity including without limitation as a director, officer, employee or agent of the Company.

(b)            Expenses.  All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

(c)            Additional Shares.  Until any termination of this Agreement in accordance with its terms, each Shareholder shall promptly notify Parent of the number of shares, if any, as to which such Shareholder acquires record or beneficial ownership after the date hereof.  Any shares as to which any Shareholder acquires record or beneficial ownership after the date hereof and prior to termination of this Agreement shall be Shareholder Shares for purposes of this Agreement.  Without limiting the foregoing, in the event of any stock split, stock dividend or other change in the capital structure of the Company affecting the Company Shares, the number of shares constituting Shareholder Share s shall be adjusted appropriately and this Agreement and the obligations hereunder shall attach to any additional shares of Company Shares or other voting securities of the Company issued to any Shareholder in connection therewith.

(d)            Definition of “Beneficial Ownership”.  For purposes of this Agreement, “beneficial ownership” with respect to (or to “own beneficially”) any securities shall mean having “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any agreement, arrangement or understanding, whether or not in writing.

(e)            Further Assurances.  From time to time, at the request of Parent and without further consideration, each Shareholder shall execute and deliver such additional documents and take all such further action as may be reasonably required to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.

(f)             Amendments; Waiver.  This Agreement may not be amended or supplemented, except by a written agreement executed by each of the parties hereto.  At any time prior to the termination of this Agreement, any party to this Agreement may, subject to applicable Law, (i) waive any inaccuracies in the representations and warranties of any other party hereto, (ii) extend the time for the performance of any of the obligations or acts of any other party hereto or (iii) waive compliance by the other party with any of the agreements contained herein.  Notwithstanding the foregoing, no failure or delay by any party to this Agreement in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right hereunder.  Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.

 
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(g)            Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, any of the parties without the prior written consent of the other parties.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.  No past, present or future director, officer, employee, incorporator, member, partner or stockholder of Parent shall have any liability for any obligations of Parent under this Agreement or for any claim based on, in respect of, or by reason of , the Transactions.  Any purported assignment not permitted under this Section 5(g) shall be null and void.

(h)            Entire Agreement.  This Agreement (including the schedules hereto) constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

(i)             No Third Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties hereto (and their respective successors and permitted assigns) any right or remedy of any nature whatsoever under or by reason of this Agreement.

(j)             Governing Law; Enforcement; Jurisdiction; Waiver of Jury Trial.

(i)             This Agreement, and any other agreement, document or instrument delivered pursuant hereto, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement (or such other document) or the negotiation, execution, termination, performance or nonperformance of this Agreement (or such other document) (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by the internal laws of the State of New York, without regard to its conflicts of law principles.

(ii)            All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in the Agreed Courts, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.  The consents to jurisdiction set forth in this paragraph shall not constitute general consents to service of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto.  The parties her eto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

 
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(iii)           EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(k)            Specific Enforcement.  The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages.  It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, and to enforce specifically the terms and provisions of this Agreement in the Agreed Courts, this being in addition to any other remedy to which they are entitled at law or in equity.

(l)             Notices.  All notices, requests and other communications to any party hereunder shall be in writing (including email and facsimile transmission) and shall be given:

If to Parent or Merger Sub, to:

c/o Goldman, Sachs & Co.
200 West Street
New York, New York 10282-2198
Attention: Sumit Rajpal
Facsimile: 212-357-5505
Email: sumit.rajpal@gs.com

and to:

c/o TPG Capital, L.P.
345 California Street, Suite 3300
San Francisco, CA 94104
Attention: Ronald Cami
Facsimile: 415-743-1501

with a copy (which shall not constitute notice) to:

Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York  10153
Attention:  Michael J. Aiello
                    Joseph T. Verdesca, Jr.
Facsimile:  (212) 310-8007
Email: michael.aiello@weil.com
           joseph.verdesca@weil.com

 
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If to a Shareholder, to his, her or its address set forth on Schedule A.

or such other address, email address or facsimile number as such party may hereafter specify by like notice to the other parties hereto.  All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

(m)           Severability.  If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

(n)            Interpretation.

(i)             Any reference to any national, state, local or foreign Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context otherwise required.  When a reference is made in this Agreement to a Section or Schedule, such reference shall be to a Section of or Schedule to this Agreement unless otherwise indicated.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  The words “hereof ,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.  Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and refere nces to all attachments thereto and instruments incorporated therein.  References to a Person are also to its permitted successors and assigns.  In this Agreement, the Shareholder of any Company Shares held in trust shall be deemed to be the relevant trust and/or the trustees thereof acting in their capacities as such trustees, in each case as the context may require to be most protective of Parent, including for purposes of such trustees’ representations and warranties as to the proper organization of the trust, their power and authority as trustees and the non-contravention of the trust’s governing instruments.

 
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(ii)            The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

(o)            Counterparts.  This Agreement may be executed in counterparts (each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

[Signature Pages Follow]

 
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.


 
PROSIGHT SPECIALTY INSURANCE
 
HOLDINGS, INC.
     
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President
     
     
 
PSI MERGER SUB INC.
     
 
By:
 /s/ Sumit Rajpal
 
Name: Sumit Rajpal
 
Title: Vice President


SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT

 
 
 

 
LOUISE B. TOLLEFSON FAMILY
 
FOUNDATION
     
 
by Robert G. Simses
     
     
 
By:
 /s/ Robert G. Simses
 
Name: Robert G. Simses
 
Title: Trustee


[SIGNATURE PAGE TO SHAREHOLDERS AGREEMENT]

 
 
 

Schedule A


Shareholder
Notice Information
Shareholder Shares
Louise B. Tollefson Family Foundation
c/o Robert G. Simses, Trustee
Simses & Associates P.A.
400 Royal Palm Way, Suite 304
Palm Beach, FL 33480
104,846
 
 
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