Exhibit 10.52**EMPLOYMENT AGREEMENT**     AGREEMENT, is made effective January 1, 2007 (the “Effective Date’) and entered into as of the9th day of January, 2007 by and between NYMAGIC, INC., a New York corporation (together with itssuccessors and assigns, the “Company”), and George R. Trumbull, III (the “Executive”).WITNESSETH:     WHEREAS, the Company desires to continue to employ the Executive pursuant to an agreementembodying the terms of such employment (this “Agreement”) and the Executive desires to enter intothis Agreement and to accept such employment, subject to the terms and provisions of thisAgreement.     NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and forother good and valuable consideration, the receipt of which is mutually acknowledged, the Companyand the Executive (individually a “Party” and together the “Parties”) agree as follows:     1. Term of Employment.          The term of the Executive’s employment under this Agreement shall commence on the EffectiveDate and end on December 31, 2007 (the “Term of Employment”), unless terminated earlier inaccordance herewith.     2. Position, Duties and Responsibilities.          (a) Generally. The Executive shall serve as Chairman of the Board of Directors (the“Board”) of the Company. For so long as he is serving on the Board, the Executive agrees to serveas a member of any committee of the Board to which he is elected. In any and all such capacities,the Executive shall report only to the Board. The Executive shall have and perform such duties,responsibilities, and authorities as are customary for the Chairman of corporations of similar sizeand businesses as the Company as they may exist from time to time and as are consistent with suchposition and status. The Executive shall devote approximately twenty (20) hours per week and hisbest efforts, abilities, experience, and talent to the position of Chairman of the Company. In theevent of termination of the Executive’s employment under this Agreement, the Executive’s membershipon the Board and any committees thereof shall also be terminated effective on the date oftermination of Executive’s employment.          (b) Other Activities. Anything herein to the contrary notwithstanding, nothing inthis Agreement shall preclude the Executive from (i) serving on the boards of directors of areasonable number of other corporations or the boards of a reasonable number of trade

 
associations and/or charitable organizations, (ii) engaging in charitable activities andcommunity affairs, (iii) managing his personal investments and affairs, provided that suchactivities do not materially interfere with the proper performance of his duties andresponsibilities under this Agreement and (iv) performing consulting services for MarinerPartners, Inc. , or any of its successors, affiliates, stockholders or members (collectively,“Mariner”).          (c) Place of Employment. The Executive’s principal place of employment shall be theCompany’s principal corporate office.     3. Base Salary.          The Executive shall be paid an annualized salary, payable in accordance with the regularpayroll practices of the Company, of $250,000 (“Base Salary”).     4. Annual Incentive Awards.          The Executive shall participate in the Company’s annual incentive compensation plan with atarget Annual Incentive Award opportunity of 50% of Base Salary and a maximum Annual IncentiveAward opportunity of 100% of Base Salary (the “Annual Incentive Award”). Payment of theExecutive’s Annual Incentive Award shall be made within 2 months of the Company’s fiscal year-end.     5. Long-Term Incentive Program.          (a) Grant of Restricted Shares. On the date of the execution of this Agreement theExecutive shall be granted 5,000 Restricted Shares under the LTIP, which shall vest on December 31,2007, contingent upon the Executive’s continued employment with the Company on that date (the“Restricted Share Grant”).     6. Employee Benefit Programs.          (a) General Benefits. During the Term of Employment as Chairman, the Executive shallbe entitled to participate in such employee benefit plans and programs of the Company as are madeavailable to the Company’s senior level executives or to its employees generally, as such plans orprograms may be in effect from time to time, including, without limitation, health, medical,dental, long-term disability, travel accident and life insurance plans.          (b) Deferral of Compensation. The Executive shall be permitted to elect to deferreceipt, pursuant to written deferral election terms and forms (the “Deferral Election Forms”)consistent with Section 409A of the Code, as hereinafter defined, of all or a specified portion ofhis annual incentive compensation under Section 4 and his long term incentive compensation underSection 5; provided, however, that such deferrals shall not reduce the Executive’s total cashcompensation in any calendar year below the sum of (i) the FICA maximum taxable wage base plus (ii)the amount needed, on an after-tax basis, to enable the
2

 
Executive to pay the 1.45% Medicare tax imposed on his wages in excess of such FICA maximumtaxable wage base.          The Company and the Executive agree that compensation deferred pursuant to this Section 6(b)shall be fully vested and nonforfeitable; however, the Executive acknowledges that his rights tothe deferred compensation provided for in this Section 6(b) shall be no greater than those of ageneral unsecured creditor of the Company, and that such rights may not be pledged, collateralized,encumbered, hypothecated, or liable for or subject to any lien, obligation, or liability of theExecutive, or be assignable or transferable by the Executive, otherwise than by will or the laws ofdescent and distribution, provided that the Executive may designate one or more beneficiaries toreceive any payment of such amounts in the event of his death.     7. Disability.          (a) During the Term of Employment, the Executive shall be entitled to disability coverage asdescribed in this Section 7(a). In the event the Executive becomes disabled, as that term isdefined under the Company’s Long-Term Disability Plan, the Executive shall be entitled to receivepursuant to the Company’s Long-Term Disability Plan or otherwise, and in place of his Base Salary,an amount equal to 60% (or at the rate then applicable) of his Base Salary, at the annual rate ineffect on the commencement date of his eligibility for the Company’s long-term disability benefits(“Commencement Date”) for a period beginning on the Commencement Date and ending with theExecutive’s attainment of age 65. If (i) the Executive ceases to be disabled during the Term ofEmployment (as determined in accordance with the terms of the Long-Term Disability Plan), (ii) theposition set forth in Section 2(a) are then vacant and (iii) the Company requests in writing thathe resume such position, he may elect to resume such position by written notice to the Companywithin 15 days after the Company delivers its request. If he resumes such position, he shallthereafter be entitled to his Base Salary at the annual rate in effect on the Commencement Dateand, for the year he resumes his position, a pro rata Annual Incentive Award at 75% of Base Salaryfor such year. If he ceases to be disabled during the Term of Employment and does not resume hisposition in accordance with the preceding sentence, he shall be treated as if he voluntarilyterminated his employment pursuant to Section 9(e) as of the date the Executive ceases to bedisabled. If the Executive is not offered such position after he ceases to be disabled during theTerm of Employment, he shall be treated as if his employment was terminated Without Cause pursuantto Section 9(c) as of the date the Executive ceases to be disabled.          (b) The Executive shall be entitled to a pro rata Annual Incentive Award at 75% of Base Salaryfor the year in which the Commencement Date occurs, payable in accordance with the terms of theannual incentive compensation plan and at the time set forth in Section 4 hereof. The Executiveshall not be entitled to any Annual Incentive Award with respect to the period following theCommencement Date. If the Executive recommences his position in accordance with Section 7(a), heshall be entitled to a pro rata Annual Incentive Award at 75% of Base Salary for the year heresumes such position and shall thereafter be entitled to Annual Incentive Awards in accordancewith Section 4 hereof.
3

 
          (c) During the period the Executive is receiving disability benefits pursuant to Section 7(a)above, he shall continue to be treated as an employee for purposes of all employee benefits andentitlements in which he was participating on the Commencement Date, including without limitation,the benefits and entitlements referred to in Section 5 and 6 above, except that the Executive shallnot be entitled to receive any annual salary increases or any new long-term incentive plan grantsor elect to defer compensation following the Commencement Date.     8. Reimbursement of Business and Other Expenses: Perquisites.          (a) The Executive is authorized to incur reasonable expenses in carrying out his duties andresponsibilities under this Agreement, and the Company shall promptly reimburse him on a monthlybasis for all such business expenses incurred in connection therewith in the prior month, subjectto documentation in accordance with the Company’s policy.     9. Termination of Employment*.*          (a) Termination Due to Death or Disability. The Term of Employment shall beterminated immediately upon the death or disability (as such term is defined under the Company’sLong-Term Disability Plan) of the Executive. In the event the Executive’s employment with theCompany is terminated due to his death or disability, the Executive, his estate or hisbeneficiaries, as the case may be, shall be entitled to and their sole remedies under thisAgreement shall be: (i) Base Salary through the date of death or theCommencement Date, as the case may be, which shall be paid in a singlelump sum 15 days following the Executive’s death or the CommencementDate, as the case may be;  (ii) pro rata Annual Incentive Award at 75% of BaseSalary for the year in which the Executive’s death, or the CommencementDate, as the case may be, occurs, which shall be payable in a lump sum30 days after his death or on the first day following the six-monthanniversary of the Executive’s termination of employment by reason ofdisability;  (iii) elimination of all restrictions on anyRestricted Share Grants or deferred stock awards outstanding at thetime of his death, or the Commencement Date, as the case may be;  (iv) immediate vesting of all outstanding stockoptions and the right to exercise such stock options as is provided inany stock option award agreement to which the Executive is a party;
4

 
 (v) the balance of any Annual Incentive Awardsearned as of December 31 of the prior year (but not yet paid), whichshall be paid in a single lump sum and in accordance with the terms ofsuch awards;  (vi) settlement of all deferred compensationarrangements in accordance with the Executive’s duly executed DeferralElection Forms; and  (vii) other or additional benefits then due orearned, payable in accordance with applicable plans and programs of theCompany.     (b) Termination by the Company for Cause. (i) The Term of Employment may be terminated by theCompany for Cause. “Cause” shall mean: (A) The Executive’s willful andmaterial breach of Sections 10, 11 or 12 of this Agreement;  (B) The Executive is convicted of afelony or pleads guilty or nolo contendre to an offense that isa felony in the jurisdiction where committed;  (C) The Executive engages inconduct that constitutes willful gross neglect or willful grossmisconduct in carrying out his duties under this Agreement,resulting, in either case, in material harm to the financialcondition or reputation of the Company;  (D) The Executive’s failure tocooperate, if requested by the Board, with any investigation orinquiry into his or the Company’s business practices, whetherinternal or external, including, but not limited to theExecutive’s refusal to be deposed or to provide testimony atany trial or inquiry;  (E) The Executive’s substantial andcontinued refusal to perform his duties;  (F) The Executive’s violation of amaterial Company Policy; and,
5

 
 (G) The Executive engages in anyact or series of acts that constitute misconduct requiring arestatement of the Company’s financial statements pursuant tothe Sarbanes-Oxley Act of 2002.For purposes of this Agreement, an act or failure to act on the Executive’s part shall beconsidered “willful” if it was done or omitted to be done by him not in good faith, and shall notinclude any act or failure to act resulting from any incapacity of the Executive. (ii) A termination for Cause shall not take effectunless the provisions of this paragraph (ii) are complied with. TheExecutive shall be given written notice by the Company of its intentionto terminate him for Cause, such notice (A) to state in detail theparticular act or acts or failure or failures to act that constitutethe grounds on which the proposed termination for Cause is based and(B) to be given within 90 days of the Company’s learning of such act oracts or failure or failures to act. The Executive shall have 20 daysafter the date that such written notice has been given to him in whichto cure such conduct, to the extent such cure is possible. If he failsto cure such conduct, the Executive shall then be entitled to a hearingbefore the Board at which the Executive is entitled to appear. Suchhearing shall be held within 25 days of such notice to the Executive,provided he requests such hearing within 10 days of the written noticefrom the Company of the intention to terminate him for Cause. If,within five days following such hearing, the Executive is furnishedwritten notice by the Board confirming that, in its judgment, groundsfor Cause on the basis of the original notice exist, he shall thereuponbe terminated for Cause.  (iii) In the event the Company terminates theExecutive’s employment for Cause, he shall be entitled to and his soleremedies under this Agreement shall be: (A) Base Salary through the date ofthe termination of his employment for Cause, which shall bepaid in a single lump sum 15 days following the Executive’stermination of employment;  (B) any Annual Incentive Awardsearned as of December 31 of the prior year (but not yet paid),which shall be paid in a single lump and in accordance with theterms of such awards;
6

 
 (C) settlement of all deferredcompensation arrangements in accordance with the Executive’sduly executed Deferral Election Forms; and  (D) other or additional benefitsthen due or earned, payable in accordance with applicable plansor programs of the Company.          (c) Termination Without Cause or Constructive Termination Without Cause. Prior to a Changein Control. In the event the Executive’s employment with the Company is terminated withoutCause (which termination shall be effective as of the date specified by the Company in a writtennotice to the Executive), other than due to death, or disability, or in the event there is aConstructive Termination Without Cause (as defined below), in either case prior to a Change inControl (as defined below) the Executive shall be entitled to and his sole remedies under thisAgreement shall be: (i) Base Salary through the date of termination ofthe Executive’s employment, which shall be paid in a single lump sum 15days following the Executive’s termination of employment;  (ii) Base Salary, at the annualized rate in effecton the date of termination of the Executive’s employment (or in theevent a reduction in Base Salary is a basis for a ConstructiveTermination Without Cause, then the Base Salary in effect immediatelyprior to such reduction), continued for a period of 12 months followingsuch termination payable in 12 equal monthly installments beginning onthe first day following the six month anniversary after the date of theExecutive’s termination of employment (the 12 month period followingtermination of employment is referred to as the “Severance Period”);  (iii) pro rata Annual Incentive Award at 75% of BaseSalary for the year in which termination occurs, payable in a lump sumpayable on the first day following the six-month anniversary after thedate of the Executive’s termination of employment;  (iv) elimination of all restrictions on anyRestricted Share Grants or deferred stock awards outstanding at thetime of termination of employment;  (v) any outstanding stock options, which areunvested, shall vest and the Executive shall have the right to exerciseany vested stock options as provided in any stock option awardagreement to which the Executive is a party;
7

 
 (vi) the balance of any Annual Incentive Awardsearned as of December 31 of the prior year (but not yet paid), whichshall be paid in a single lump sum and in accordance with the terms ofsuch awards;  (vii) settlement of all deferred compensationarrangements in accordance with the Executive’s duly executed DeferralElection Forms;  (viii) continued participation in all medical, health and life insuranceplans at the same benefit level at which he was participating on thedate of the termination of his employment until the earlier of: (A) the expiration of the SeverancePeriod; or  (B) the date, or dates, he receivesequivalent coverage and benefits under the plans and programsof a subsequent employer;   provided, however, to the extent that any such benefits cannot beprovided on a non-taxable basis to the Executive and the provisionthereof would cause any part of the benefits to be subject toadditional taxes and interest under Section 409A of the Code, thenthe provision of such benefits shall be deferred to the earliestdate upon which such benefits can be provided without being subjectto such additional taxes and interest; and,  (x) other or additional benefits then due orearned, payable in accordance with applicable plans and programs of theCompany.          A termination without “Cause” shall mean the Executive’s employment is terminated by theCompany for any reason other than Cause (as defined in Section 9(b)) or due to death ordisability.          “Constructive Termination Without Cause” shall mean a termination of the Executive’semployment at his initiative as provided in this Section 9(c) following the occurrence, withoutthe Executive’s written consent, of one or more of the following events (except as a result of aprior termination): (A) a removal of the Executivefrom or any failure to elect or re-elect or, as the case maybe, nominate the Executive as a member of the Board;
8

 
 (B) an assignment of any dutiesto the Executive which are inconsistent with his status asChairman of the Company;  (C) a decrease in annual BaseSalary or target Annual Incentive Award opportunity;  (D) any other failure by theCompany to perform any material obligation under, or breachby the Company of any material provision of, this Agreementthat is not cured within 30 days after receipt by the Companyof written notice thereof from the Executive; or  (E) a relocation of the corporateoffices of the Company outside a 35-mile radius of New York,New York, or Hartford Connecticut.     Notwithstanding anything to contrary contained in this Agreement, a Constructive TerminationWithout Cause shall not have occurred if the occurrence of an event which would otherwiseconstitute Constructive Termination Without Cause under this Agreement arises out of or inconnection with any transaction between the Company and Mariner.          (d) Termination Upon a Change of Control. The Term of Employment shall be terminatedimmediately upon a Change of Control (as defined below). In the event the Executive’s employmentwith the Company is terminated due to a Change of Control, the Executive shall be entitled to andhis sole remedies under this Agreement shall be: (i) Base Salary through the date of the Change ofControl, which shall be paid in a single lump sum 15 days following thedate of the Executive’s termination of employment;  (ii) pro rata Annual Incentive Award at 75% of BaseSalary for the year in which the Change of Control occurs, which shallbe payable in a lump sum on the first day following the six monthanniversary of the Executive’s termination of employment;  (iii) elimination of all restrictions on anyRestricted Share Grants or deferred stock awards outstanding on thedate of the Change of Control;  (iv) immediate vesting of all outstanding stockoptions and the right to exercise such stock options as provided in anystock option award agreement to which the Executive is a party;
9

 
 (v) the balance of any Annual Incentive Awardsearned as of December 31 of the prior year (but not yet paid), whichshall be paid in a single lump sum and in accordance with the terms ofsuch awards;  (vi) settlement of all deferred compensationarrangements in accordance with the Executive’s duly executed DeferralElection Forms; and  (vii) other or additional benefits then due orearned, payable in accordance with applicable plans and programs of theCompany.A “Change in Control” shall be deemed to have occurred if: (i) any Person (other than the Company, any trusteeor other fiduciary holding securities under any employee benefit planof the Company, or any company owned, directly or indirectly, by thestockholders of the Company immediately prior to the occurrence withrespect to which the evaluation is being made in substantially the sameproportions as their ownership of the common stock of the Company)becomes the Beneficial Owner (except that a Person shall be deemed tobe the Beneficial Owner of all shares that any such Person has theright to acquire pursuant to any agreement or arrangement or uponexercise of conversion rights, warrants or options or otherwise,without regard to the sixty day period referred to in Rule 13d-3 underthe Exchange Act), directly or indirectly, of securities of the Companyor any Significant Subsidiary (as defined below), representing 50% ormore of the combined voting power of the Company’s or such subsidiary’sthen outstanding securities;  (ii) during any period of two consecutive years,individuals who at the beginning of such period constitute the Board,and any new director (other than a director designated by a person whohas entered into an agreement with the Company to effect a transactiondescribed in clause (i), (iii), or (iv) of this paragraph) whoseelection by the Board or nomination for election by the Company’sstockholders was approved by a vote of at least two-thirds of thedirectors then still in office who either were directors at thebeginning of the two-year period or whose election or nomination forelection was previously so approved but excluding for this purpose anysuch new director whose initial assumption of office occurs as a resultof either an actual or threatened election contest (as such terms areused in Rule 14a-11 of Regulation 14A promulgated under the ExchangeAct) or other
10

 
   actual or threatened solicitation of proxies or consents by or onbehalf of an individual, corporation, partnership, group, associateor other entity or Person other than the Board, cease for any reasonto constitute at least a majority of the Board;  (iii) the consummation of a merger or consolidationof the Company or any subsidiary owning directly or indirectly all orsubstantially all of the consolidated assets of the Company (a“Significant Subsidiary”) with any other entity, other than a merger orconsolidation which would result in the voting securities of theCompany or a Significant Subsidiary outstanding immediately priorthereto continuing to represent (either by remaining outstanding or bybeing converted into voting securities of the surviving or resultingentity) more than 50% of the combined voting power of the surviving orresulting entity outstanding immediately after such merger orconsolidation;  (iv) the consummation of a plan or agreement for thesale or disposition of all or substantially all of the consolidatedassets of the Company (other than such a sale or dispositionimmediately after which such assets will be owned directly orindirectly by the stockholders of the Company in substantially the sameproportions as their ownership of the common stock of the Companyimmediately prior to such sale or disposition) in which case the Boardshall determine the effective date of the Change in Control resultingtherefrom; or  (v) any other event occurs which the Boarddetermines, in its discretion, would materially alter the structure ofthe Company or its ownership.     For purposes of this definition: (A) The term “Beneficial Owner”shall have the meaning ascribed to such term in Rule 13d-3under the Exchange Act (including any successor to such Rule).  (B) The term “Exchange Act” meansthe Securities Exchange Act of 1934, as amended from time totime, or any successor act thereto.  (C) The term “Person” shall havethe meaning ascribed to such term in Section 3(a)(9) of theExchange Act and used in Sections 13(d) and 14(d) thereof,including “group” as defined in Section 14(d) thereof.
11

 
     Notwithstanding anything to contrary contained in this Agreement, a Change in Control shallnot have occurred if the occurrence of an event which would otherwise constitute a Change inControl under this Agreement arises out of or in connection with any transaction between theCompany and Mariner.          (e) Voluntary Termination. In the event of a termination of employment by theExecutive on his own initiative after delivery of 10 business days advance written notice, otherthan a termination due to death, disability or a Constructive Termination Without Cause, theExecutive shall have the same entitlements as provided in Section 9(b)(iii) above for a terminationfor Cause. Notwithstanding any implication to the contrary, the Executive shall not have the rightto terminate his employment with the Company during the Term of Employment except in the event of aConstructive Termination Without Cause, and any voluntary termination of employment during the Termof Employment in violation of this Agreement shall be considered a material breach.          (f) No Mitigation; No Offset. In the event of any termination of employment, theExecutive shall be under no obligation to seek other employment and, except as provided in Section9(c)(viii), amounts due the Executive under this Agreement shall not be offset by any remunerationattributable to any subsequent employment that he may obtain.          (g) Nature of Payments. Any amounts due under this Section 9 are in the nature ofseverance payments considered to be reasonable by the Company and are not in the nature of apenalty.          (h) No Further Liability; Release. In the event of the Executive’s termination ofemployment, payment made and performance by the Company in accordance with this Section 9 shalloperate to fully discharge and release the Company and its directors, officers, employees,subsidiaries, affiliates, stockholders, successors, assigns, agents and representatives from anyfurther obligation or liability with respect to the Executive’s rights under this Agreement. Otherthan payment and performance under this Section 9, the Company and its directors, officers,employees, subsidiaries, affiliates, stockholders, successors, assigns, agents and representativesshall have no further obligation or liability to the Executive or any other person under thisAgreement in the event of the Executive’s termination of employment. The Company shall have theright to condition the payment of any severance or other amounts pursuant to this Section 9 uponthe delivery by the Executive to the Company of a release in the form satisfactory to the Companyreleasing any and all claims the Executive may have against the Company and its directors,officers, employees, subsidiaries, affiliates, stockholders, successors, assigns, agents andrepresentatives arising out of this Agreement.     10. Confidentiality: Cooperation with Regard to Litigation; Non-Disparagement; Return ofCompany Materials.          (a) During the Term of Employment and thereafter, the Executive shall not, without the priorwritten consent of the Company, disclose to anyone (except in good faith in
12

 
the ordinary course of business to a person who will be advised by the Executive to keep suchinformation confidential) or make use of any Confidential Information, except in the performance ofhis duties hereunder or when required to do so by legal process, by any governmental agency havingsupervisory authority over the business of the Company or by any administrative or legislative body(including a committee thereof) that requires him to divulge, disclose or make accessible suchinformation. In the event that the Executive is so ordered, he shall give prompt written notice tothe Company in order to allow the Company the opportunity to object to or otherwise resist suchorder.          (b) During the Term of Employment and thereafter, the Executive shall not disclose theexistence or contents of this Agreement beyond what is disclosed in the proxy statement ordocuments filed with the government unless and to the extent such disclosure is required by law, bya governmental agency, or in a document required by law to be filed with a governmental agency orin connection with enforcement of his rights under this Agreement. In the event that disclosure isso required, the Executive shall give prompt written notice to the Company in order to allow theCompany the opportunity to object to or otherwise resist such requirement. This restriction shallnot apply to such disclosure by him to members of his immediate family, his tax, legal or financialadvisors, any lender, or tax authorities, or to potential future employers to the extent necessary,each of whom shall be advised not to disclose such information.          (c) “Confidential Information” shall mean (i) all information concerning the business of theCompany or any Subsidiary including information relating to any of their products, productdevelopment, trade secrets, customers, suppliers, finances, and business plans and strategies, and(ii) information regarding the organization structure and the names, titles, status, compensation,benefits and other proprietary employment-related aspects of the employees of the Company and theCompany’s employment practices. Excluded from the definition of Confidential Information isinformation (A) that is or becomes part of the public domain, other than through the breach of thisAgreement by the Executive or (B) regarding the Company’s business or industry properly acquired bythe Executive in the course of his career as an executive in the Company’s industry and independentof the Executive’s employment by the Company. For this purpose, information known or availablegenerally within the trade or industry of the Company or any Subsidiary shall be deemed to be knownor available to the public.          (d) “Subsidiary” shall mean any corporation controlled directly or indirectly by the Company.          (e) The Executive agrees to cooperate with the Company, during the Term of Employment andthereafter (including following the Executive’s termination of employment for any reason), bymaking himself reasonably available to testify on behalf of the Company or any Subsidiary in anyaction, suit, or proceeding, whether civil, criminal, administrative, or investigative, and toassist the Company, or any Subsidiary, in any such action, suit, or proceeding, by providinginformation and meeting and consulting with the Board or its representatives or counsel, orrepresentatives or counsel to the Company, or any Subsidiary as
13

 
requested; provided, however that the same does not materially interfere with his then currentprofessional activities. The Company agrees to reimburse the Executive on a monthly basis for allexpenses actually incurred in the prior month in connection with his provision of testimony orassistance.          (f) The Executive agrees that, during the Term of Employment and thereafter (includingfollowing the Executive’s termination of employment for any reason) he will not make statements orrepresentations, or otherwise communicate, directly or indirectly, in writing, orally, orotherwise, or take any action which may, directly or indirectly, disparage the Company or anySubsidiary or their respective officers, directors, employees, advisors, businesses or reputations.The Company agrees that, during the Term of Employment and thereafter (including following theExecutive’s termination of employment for any reason) the Company will not make statements orrepresentations, or otherwise communicate, directly or indirectly, in writing, orally, orotherwise, or take any action which may directly or indirectly, disparage the Executive or hisbusiness or reputation. Notwithstanding the foregoing, nothing in this Agreement shall precludeeither the Executive or the Company from making truthful statements or disclosures that arerequired by applicable law, regulation, or legal process.          (g) Upon any termination of employment, the Executive agrees to deliver any Company propertyand any documents, notes, drawings, specifications, computer software, data and other materials ofany nature pertaining to any Confidential Information that are held by the Executive and will nottake any of the foregoing, or any reproduction of any of the foregoing, that is embodied in anytangible medium of expression, provided that the foregoing shall not prohibit the Executive fromretaining his personal phone directories and rolodexes.     11. Non-competition.          (a) During the Restriction Period (as defined in Section 11(b) below), the Executive shall notengage in Competition with the Company or any Subsidiary. “Competition” shall mean engaging in anyactivity, except as provided below, for a Competitor of the Company or any Subsidiary, whether asan employee, consultant, principal, agent, officer, director, partner, shareholder (except as aless than one percent shareholder of a publicly traded company) or otherwise. A “Competitor” shallmean any business (in the U.S. or any country in which the Company or any Subsidiary operates)which is in material competition with the Company or any Subsidiary and in which the Executive’sfunctions would be substantially similar to the Executive’s functions with the Company. If theExecutive commences employment or becomes a consultant, principal, agent, officer, director,partner, or shareholder of any entity that is not a Competitor at the time the Executive initiallybecomes employed or becomes a consultant, principal, agent, officer, director, partner, orshareholder of the entity, future activities of such entity shall not result in a violation of thisprovision unless (x) such activities were contemplated by the Executive at the time the Executiveinitially became employed or becomes a consultant, principal, agent, officer, director, partner, orshareholder of the entity or (y) the Executive commences directly or indirectly to advise, plan,oversee or manage the activities of an entity which becomes a Competitor during the RestrictionPeriod, that activities are competitive with the activities of the Company or any Subsidiary.
14

 
          (b) For the purposes of this Section 11, “Restriction Period” shall mean the period beginningwith the Effective Date and ending with: (i) in the case of a termination of the Executive’semployment without Cause, voluntary termination, upon a Change ofControl or a Constructive Termination Without Cause, the RestrictionPeriod shall terminate immediately upon the Executive’s termination ofemployment; and,  (ii) in the case of a termination of the Executive’semployment for Cause, 12 months from the date of such termination.     12. Non-solicitation of Employees*.*          During the period beginning with the Effective Date and ending 12 months following thetermination of the Executive’s employment, the Executive shall not induce employees of the Companyor any Subsidiary to terminate their employment; provided, however, that the foregoing shall not beconstrued to prevent the Executive from engaging in generic nontargeted advertising for employeesgenerally. During such period, the Executive shall not hire, either directly or through anyemployee, agent or representative, any employee of the Company or any Subsidiary or any person whowas employed by the Company or any Subsidiary within 180 days of such hiring.     13. Remedies.          In addition to whatever other rights and remedies the Company may have at equity or in law, ifthe Executive breaches any of the provisions contained in Sections 10, 11 or 12 above, the Company(a) shall have its rights under Section 10 of this Agreement, (b) shall have the right toimmediately terminate all payments and benefits due under this Agreement and (c) shall have theright to seek injunctive relief. The Executive acknowledges that such a breach of Sections 10, 11or 12 would cause irreparable injury and that money damages would not provide an adequate remedyfor the Company; provided, however, the foregoing shall not prevent the Executive from contestingthe issuance of any such injunction on the ground that no violation or threatened violation ofSections 10, 11 or 12 has occurred.     14. Resolution of Disputes.          Any controversy or claim arising out of or relating to this Agreement or any breach orasserted breach hereof or questioning the validity and binding effect hereof arising under or inconnection with this Agreement, other than seeking injunctive relief under Section 13, shall beresolved by binding arbitration, to be held at an office closest to the Company’s principal officesin accordance with the rules and procedures of the American Arbitration Association, except thatdisputes arising under or in connection with Sections 10, 11 and 12 above shall be submitted to thefederal or state courts in the State of New York. Judgment upon
15

 
the award rendered by the arbitrator(s) may be entered in any court having jurisdictionthereof. Pending the resolution of any arbitration or court proceeding, the Company shall continuepayment of all amounts and benefits due the Executive under this Agreement. All reasonable costsand expenses (including fees and disbursements of counsel) incurred by the Executive pursuant tothis Section 14 shall be paid on behalf of or reimbursed to the Executive on a monthly basis by theCompany for reasonable costs and expenses incurred in the prior month; provided, however, that inthe event the arbitrator(s) determine(s) that any of the Executive’s litigation assertions ordefenses are determined to be in bad faith or frivolous, no such reimbursements shall be due theExecutive, and any such expenses already paid to the Executive shall be immediately returned by theExecutive to the Company.     15. Indemnification.          (a) Company Indemnity. The Company agrees that if the Executive is made a party, oris threatened to be made a party, to any action, suit or proceeding, whether civil, criminal,administrative or investigative (a “Proceeding”), by reason of the fact that he is or was adirector, officer or employee of the Company or any Subsidiary or is or was serving at the requestof the Company or any Subsidiary as a director, officer, member, employee or agent of anothercorporation, partnership, joint venture, trust or other enterprise, including service with respectto employee benefit plans, whether or not the basis of such Proceeding is the Executive’s allegedaction in an official capacity while serving as a director, officer, member, employee or agent, theExecutive shall be indemnified and held harmless by the Company to the fullest extent legallypermitted or authorized by the Company’s certificate of incorporation or bylaws or resolutions ofthe Company’s Board or, if greater, by the laws of the State of New York against all cost, expense,liability and loss (including, without limitation, attorney’s fees, judgments, fines, ERISA excisetaxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered bythe Executive in connection therewith, and such indemnification shall continue as to the Executiveeven if he has ceased to be a director, member, officer, employee or agent of the Company or otherentity and shall inure to the benefit of the Executive’s heirs, executors and administrators. TheCompany shall advance to the Executive all reasonable costs and expenses to be incurred by him inconnection with a Proceeding within 20 days after receipt by the Company of a written request forsuch advance, together with such documentation as may be reasonably requested by the Company. Suchrequest shall include an undertaking by the Executive to repay the amount of such advance if itshall ultimately be determined that he is not entitled to be indemnified against such costs andexpenses. The provisions of this Section 15(a) shall not be deemed exclusive of any other rightsof indemnification to which the Executive may be entitled or which may be granted to him, and itshall be in addition to any rights of indemnification to which he may be entitled under any policyof insurance.          (b) No Presumption Regarding Standard of Conduct. Neither the failure of the Company(including its Board, independent legal counsel or stockholders) to have made a determination priorto the commencement of any proceeding concerning payment of amounts claimed by the Executive underSection 15(a) above that indemnification of the Executive is proper because he has met theapplicable standard of conduct, nor a determination by the
16

 
Company (including its Board, independent legal counsel or stockholders) that the Executive has notmet such applicable standard of conduct, shall create a presumption that the Executive has not metthe applicable standard of conduct.          (c) Liability Insurance. The Company agrees to continue and maintain a directors andofficers’ liability insurance policy covering the Executive to the extent the Company provides suchcoverage for its other executive officers.     16. Excise Tax Gross-Up.          If the Executive becomes entitled to one or more payments (with a “payment” including, withoutlimitation, the vesting of an option or other non-cash benefit or property), whether pursuant tothe terms of this Agreement or any other plan, arrangement, or agreement with the Company or anyaffiliated company (the “Total Payments”), which are or become subject to the tax imposed bySection 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (or any similar tax thatmay hereafter be imposed) (the “Excise Tax”), the Company shall pay to the Executive at the timespecified below an additional amount (the “Gross-up Payment”) (which shall include, withoutlimitation, reimbursement for any penalties and interest that may accrue in respect of such ExciseTax) such that the net amount retained by the Executive, after reduction for any Excise Tax(including any penalties or interest thereon) on the Total Payments and any federal, state andlocal income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section16, but before reduction for any federal, state, or local income or employment tax on the TotalPayments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to theproduct of any deductions disallowed for federal, state, or local income tax purposes because ofthe inclusion of the Gross-up Payment in the Executive’s adjusted gross income multiplied by thehighest applicable marginal rate of federal, state, or local income taxation, respectively, for thecalendar year in which the Gross-up Payment is to be made. For purposes of determining whether anyof the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax: (i) The Total Payments shall be treated as “parachute payments”within the meaning of Section 280G(b)(2) of the Code, and all “excess parachutepayments” within the meaning of Section 280G(b)(1) of the Code shall be treatedas subject to the Excise Tax, unless, and except to the extent that, in thewritten opinion of independent compensation consultants, counsel or auditors ofnationally recognized standing (“Independent Advisors”) selected by the Companyand reasonably acceptable to the Executive, the Total Payments (in whole or inpart) do not constitute parachute payments, or such excess parachute payments(in whole or in part) represent reasonable compensation for services actuallyrendered within the meaning of Section 280G(b)(4) of the Code in excess of thebase amount within the meaning of Section 280G(b)(3) of the Code or areotherwise not subject to the Excise Tax;
17

 
 (ii) The amount of the Total Payments which shall be treated assubject to the Excise Tax shall be equal to the lesser of (A) the total amountof the Total Payments or (B) the total amount of excess parachute paymentswithin the meaning of Section 280G(b)(1) of the Code (after applying clause (i)above); and  (iii) The value of any non-cash benefits or any deferred payment orbenefit shall be determined by the Independent Advisors in accordance with theprinciples of Sections 280G(d)(3) and (4) of the Code.          For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed(A) to pay federal income taxes at the highest marginal rate of federal income taxation for thecalendar year in which the Gross-up Payment is to be made; (B) to pay any applicable state andlocal income taxes at the highest marginal rate of taxation for the calendar year in which theGross-up Payment is to be made, net of the maximum reduction in federal income taxes which could beobtained from deduction of such state and local taxes if paid in such year (determined withoutregard to limitations on deductions based upon the amount of the Executive’s adjusted grossincome); and (C) to have otherwise allowable deductions for federal, state, and local income taxpurposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in theExecutive’s adjusted gross income. In the event that the Excise Tax is subsequently determined tobe less than the amount taken into account hereunder at the time the Gross-up Payment is made, theExecutive shall repay to the Company at the time that the amount of such reduction in Excise Tax isfinally determined (but, if previously paid to the taxing authorities, not prior to the time theamount of such reduction is refunded to the Executive or otherwise realized as a benefit by theExecutive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax hadbeen applied in initially calculating the Gross-up Payment, plus interest on the amount of suchrepayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the ExciseTax is determined to exceed the amount taken into account hereunder at the time the Gross-upPayment is made (including by reason of any payment the existence or amount of which cannot bedetermined at the time of the Gross-up Payment), the Company shall make an additional Gross-upPayment in respect of such excess (plus any interest and penalties payable with respect to suchexcess) at the time that the amount of such excess is finally determined.          The Gross-up Payment provided for above shall be paid on the 30th day after it has beendetermined that the Total Payments (or any portion thereof) are subject to the Excise Tax and thatthe Executive has the right to such Gross-up Payment pursuant to this Section 16 ; provided,however, that if the amount of such Gross-up Payment or portion thereof cannot be finallydetermined by such date, the Company shall pay to the Executive on such date an estimate, asdetermined by the Independent Advisors, of the minimum amount of such payments and shall pay theremainder of such payments, if any, (together with interest at the rate provided in Section1274(b)(2)(B) of the Code), immediately upon the determination of the amount thereof. In the eventthat the amount of the estimated payments exceeds the amount subsequently determined to have beendue, the Executive shall immediately repay such excess to the Company on the date such amount isfinally determined (together with interest at the rate
18

 
provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made,the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-upPayment. The Company shall have the right to control all proceedings with the Internal RevenueService that may arise in connection with the determination and assessment of any Excise Tax and,at its sole option, the Company may pursue or forego any and all administrative appeals,proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax(including any interest or penalties thereon); provided, however, that the Company’s control overany such proceedings shall be limited to issues with respect to which a Gross-up Payment would bepayable hereunder, and the Executive shall be entitled to settle or contest any other issue raisedby the Internal Revenue Service or any other taxing authority. The Executive shall cooperate withthe Company in any proceedings relating to the determination and assessment of any Excise Tax andshall not take any position or action that would materially increase the amount of any Gross-UpPayment hereunder.     17. Effect of Agreement on Other Benefits.          Except as specifically provided in this Agreement, the existence of this Agreement shall notbe interpreted to preclude, prohibit or restrict the Executive’s participation in any otheremployee benefit or other plans or programs in which he currently participates.     18. Assignability: Binding Nature.          No rights or obligations of either the Executive (except as provided in Section 24, below) orthe Company under this Agreement may be assigned or transferred including without limitation, thoserights or obligations customarily assigned or transferred in connection with the merger,consolidation, sale, or transfer of all, or substantially all of the assets, of the Company;provided, however, that this Agreement shall be binding upon and inure to the benefit of the heirsof the Executive and that the Executive’s rights to compensation and benefits may be transferred bywill or the laws of descent and distribution.     19. Representation.          The Company represents and warrants that it is fully authorized and empowered to enter intothis Agreement and that the performance of its obligations under this Agreement will not violateany agreement between it and any other person, firm or organization.     20. Entire Agreement.          This Agreement contains the entire understanding and agreement between the Parties concerningthe subject matter hereof and, as of the Effective Date, supersedes all prior agreements,understandings, discussions, negotiations and undertakings, whether written or oral, between theParties with respect thereto, except with respect to the specific award agreements referred toherein and, for the avoidance of doubt, is not intended to, nor does it in any way, address therights and obligations of the Executive arising out of any agreement
19

 
between the Executive and Mariner, pursuant to which Mariner holds as nominee for theExecutive options to purchase shares of the Company.     21. Amendment or Waiver.          No provision in this Agreement may be amended unless such amendment is agreed to in writingand signed by the Executive and an authorized officer of the Company. Except as set forth herein,no delay or omission to exercise any right, power or remedy accruing to any Party shall impair anysuch right, power or remedy or shall be construed to be a waiver of or an acquiescence to anybreach hereof. No waiver by either Party of any breach by the other Party of any condition orprovision contained in this Agreement to be performed by such other Party shall be deemed a waiverof a similar or dissimilar condition or provision at the same or any prior or subsequent time. Anywaiver must be in writing and signed by the Executive or an authorized officer of the Company, asthe case may be.     22. Severability.          In the event that any provision or portion of this Agreement shall be determined to be invalidor unenforceable for any reason, in whole or in part, the remaining provisions of this Agreementshall be unaffected thereby and shall remain in full force and effect to the fullest extentpermitted by law.     23. Survivorship.          The respective rights and obligations of the Parties hereunder shall survive any terminationof the Executive’s employment to the extent necessary to the intended preservation of such rightsand obligations.     24. Beneficiaries/References.          The Executive shall be entitled, to the extent permitted under any applicable law, to selectand change a beneficiary or beneficiaries to receive any compensation or benefit payable hereunderfollowing the Executive’s death by giving the Company written notice thereof. In the event of theExecutive’s death or a judicial determination of his incompetence, reference in this Agreement tothe Executive shall be deemed, where appropriate, to refer to his beneficiary, estate or otherlegal representative.     25. Governing Law/Jurisdiction.          This Agreement shall be governed by and construed and interpreted in accordance with the lawsof New York without reference to principles of conflict of laws. Subject to Section 14, theCompany and the Executive hereby consent to the jurisdiction of any or all of the following courtsfor purposes of resolving any dispute under this Agreement: (i) the United States District Courtfor the Southern District of New York or (ii) any of the courts of the State of New York. TheCompany and the Executive further agree that any service of
20

 
process or notice requirements in any such proceeding shall be satisfied if the rules of suchcourt relating thereto have been substantially satisfied. The Company and the Executive herebywaive, to the fullest extent permitted by applicable law, any objection which it or he may now orhereafter have to such jurisdiction and any defense of inconvenient forum.     26. Notices.          Any notice given to a Party shall be in writing and shall be deemed to have been given whendelivered personally or sent by certified or registered mail, postage prepaid, return receiptrequested, duly addressed to the Party concerned at the address indicated below or to such changedaddress as such Party may subsequently give such notice of:If to the Company: