Exhibit 10.69





Exhibit 10.69




NYMAGIC, INC.

AMENDED AND RESTATED VOTING AGREEMENT




AMENDED AND RESTATED VOTING AGREEMENT (this “Agreement”) dated as of October 15, 2008 by and among
(i) MARK W. BLACKMAN, (ii) LIONSHEAD INVESTMENTS, LLC (“Lionshead Investments”), ROBERT G. SIMSES
(formerly the “Tollefson Trustee” and hereinafter, the “Louise Blackman Trustee”) as trustee of the
Louise B. Tollefson 2000 Florida Intangible Tax Trust and as trustee of the Louise B. Blackman
Tollefson Family Foundation, (the “Participating Shareholders”); and (iv) MARINER PARTNERS, INC.
(“Mariner”).



WHEREAS, the Participating Shareholders (including Lionshead Investments, which was then known as
Blackman Investments, LLC) and Mariner, together with John N. Blackman, Jr. (the “Blackman
Trustee”) as trustee of the Blackman Charitable Remainder Trust (the “Blackman Co-Trust”), Kathleen
Blackman as co-trustee with the Blackman Trustee of the Blackman Co-Trust, and Robert G. Simses and
First Union National Bank (now Wachovia Bank, N.A.) as co-trustees of the Louise B. Tollefson
Charitable Lead Annuity Trust (the “CLAT”) and the Bennett L. Tollefson Charitable Lead Unitrust
(the “CLUT”) entered into a certain voting agreement dated February 20, 2002, which voting
agreement was amended on March 1, 2002 and further amended by Amendment No. 2 on January 27, 2003,
Amendment No. 3 on March 12, 2003 and Amendment No. 4 on February 24, 2004 (the “Voting
Agreement”);



WHEREAS, the CLAT and the CLUT, with the approval of, and waivers granted by, Mariner pursuant to
the Voting Agreement transferred all of their respective shares of NYMAGIC, INC. (the
“Corporation”) so that they are no longer subject to the Voting Agreement;



WHEREAS, the parties do not deem it necessary to include the Blackman Co-Trust as a party to this
Agreement;



WHEREAS, notwithstanding that the CLAT and the CLUT are no longer subject to the Voting Agreement
and that the parties no longer deem it necessary to include the Blackman Co-Trust as a party to
this Agreement, the Participating Shareholders continue to believe that it is advisable and in the
best interests of the Corporation and the shareholders thereof to have a voting agreement in order
to (i) secure continuity and stability of policy and management of the Corporation with the advice
and assistance of Mariner, and (ii) induce Mariner to enter into an advisory relationship with the
Corporation, by acting together with respect to the voting on or consenting to certain matters that
may be acted upon by the holders of common stock of the Corporation; and,



WHEREAS, the parties hereto desire to amend and restate the Voting Agreement as provided for herein.



 


 









 





NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:



ARTICLE I. PARTICIPATING SHAREHOLDERS; REPRESENTATIONS; ETC:





	(A)	 	The Participating Shareholders are:






	 	(i)	 	Mark W. Blackman;
	 
	 	(ii)	 	Lionshead Investments; and
	 
	 	(iii)	 	The Louise Blackman Trustee as sole trustee of the Louise B.
Tollefson 2000 Florida Intangible Tax Trust dated December 12, 2000
and the Louise B. Blackman Tollefson Family Foundation dated
March 24, 1998 (such trusts being collectively, the “Louise Blackman
Trusts”).






	(B)	 	Voting. With regard to any provision of this Agreement allowing for,
or requiring, the vote of the Participating Shareholders, each
Participating Shareholder shall have one vote.
	 
	(C)	 	Representations. Each Participating Shareholder represents and
warrants to Mariner as follows, but only as to himself or itself, as
applicable:






	 	(i)	 	Ownership of Shares. Each of Mark W. Blackman and Lionshead
Investments is the record holder and beneficial owner and the Louise
Blackman Trustee is the record and legal holder of that number of
Voting Shares (as hereinafter defined) listed opposite each such
Participating Shareholder’s name in Article II hereof which at the
date hereof, and at all times up until the Termination Date (as
hereinafter defined) will be free and clear of any liens, claims,
options, charges or other encumbrances, except as permitted herein.
	 
	 	(ii)	 	Authorization. The execution, delivery and performance by each
Participating Shareholder of this Agreement and the consummation by
each Participating Shareholder of the transactions contemplated
hereby are within the powers of each Participating Shareholder. This
Agreement constitutes a legal, valid and binding Agreement of each
Participating Shareholder.
	 
	 	(iii)	 	No Other Voting Agreement. Other than as set forth herein, none of
the Voting Shares is subject to any voting trust or other agreement,
document or arrangement with respect to the voting of such Voting
Shares and no Participating Shareholder shall enter into any such
trust, agreement or arrangement during the term of this Agreement.






	(D)	 	Dividends. Dividends and the proceeds from any sale or other
distribution of any Voting Shares shall be paid or distributed to the
applicable Participating Shareholder as if this Agreement did not
exist.





ARTICLE II. SHARES SUBJECT TO THIS AGREEMENT:




The following are shares of common stock of the Corporation are subject to the
terms of this Agreement (collectively, the “Voting Shares”):




	(A)	 	225,000 Shares of NYMAGIC, INC. for which Mark W. Blackman has sole voting power;
	 
	(B)	 	225,000 Shares of NYMAGIC, INC. for which Lionshead Investments has sole voting power; and
	 
	(C)	 	861,409 Shares of NYMAGIC, INC. held by the Florida Intangible Tax
Trust and 38,591 shares held by the Louise B. Blackman Tollefson
Family Foundation (the “Louise Blackman Shares”).




 


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ARTICLE III. RIGHTS AND POWERS OF MARINER:





	(A)	 	Except as provided in clause (B) below and Article IV, the
Participating Shareholders hereby irrevocably authorize Mariner, with
(and only with) the written approval of two of the three Participating
Shareholders, to exercise all of the rights of a shareholder of the
Corporation and to vote the Voting Shares at all meetings of
shareholders, including all adjournments thereof and on every action
or approval by written consent of the shareholders of the Corporation
in the manner contemplated herein. Subject to clause (B) below, in the
event that two of the three Participating Shareholders fail to approve
any vote by Mariner on any matter, Mariner shall not vote on such
matter, and Mariner’s non-voting will not entitle any Participating
Shareholder to instead vote his or its Voting Shares on that matter.
	 


	(B)	 	Notwithstanding the provisions of clause (A) above or any other
provision of this Agreement, Mariner shall have no right to vote on or
consent to (a) the merger or consolidation of the Corporation into or
with another corporation, (b) the sale of all or substantially all of
its assets, (c) its dissolution and/or liquidation, or (d) any
recapitalization or stock offering of the Corporation, unless two of
the three Participating Shareholders shall have consented thereto in
writing. In the event that two of the three Participating Shareholders
fail to approve any vote by Mariner on any matter referred to in this
clause (B), Mariner shall not vote on such matter and instead each
Participating Shareholder may vote his or its Voting Shares on that
matter.
	 
	(C)	 	Notices. Mariner shall have the right to receive notices of all
meetings of the board of directors of the Corporation (the “Board”)
and of the shareholders of the Corporation.
	 
	(D)	 	Irrevocable Proxy. By entering into this Agreement and subject to the
terms hereof each Participating Shareholder hereby grants, subject to
the provisions of (A) and (B) above, an irrevocable proxy and power of
attorney appointing Mariner as such Participating Shareholder’s
attorney-in-fact and proxy, with full power of substitution, for and
in such Participating Shareholder’s name, to vote, express, consent or
dissent, or otherwise to utilize such voting power in the manner
contemplated by the parties to this Agreement and to carry out the
intent of such parties as Mariner deems proper with respect to the
Voting Shares and the operation of the Corporation. The proxy granted
by each Participating Shareholder pursuant to this Article III is
irrevocable and is granted in consideration of Mariner entering into
this Agreement and becoming an advisor to the Corporation. The proxy
granted by each Participating Shareholder shall be revoked on the
Termination Date.
	 
	(E)	 	 No Revocation. The voting agreements contained herein are coupled
with an interest and may not be revoked, except by an amendment,
modification or termination effected in accordance with Articles VII
or VIII herein.
	 
	(F)	 	Limitation of Liability. Mariner will exercise its best judgment in
exercising the rights and powers and in performing the duties and
obligations of a shareholder of the Corporation as set forth in this
Agreement. Mariner shall have no liability hereunder except for its
gross negligence and/or willful misconduct, which shall have caused
direct, substantial and provable damage to the Corporation.




 


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ARTICLE IV. NOMINATION OF DIRECTORS:





	(A)	 	The Participating Shareholders and Mariner acknowledge the benefits of
a Board nominated with the knowledge, experience and talents of both
the Participating Shareholders and Mariner.
	 
	(B)	 	Mariner shall be entitled to nominate four (4) candidates for election
to the Board; Robert G. Simses shall be entitled to nominate two
(2) candidates for election to the Board, including himself; Mark W.
Blackman shall be entitled to nominate one (1) candidate for election
to the Board and Lionshead Investments shall be entitled to nominate
one (1) candidate for election to the Board, provided that one of the
candidates nominated to the Board by Robert G. Simses and each of the
candidates nominated to the Board by Mark W. Blackman and Lionshead
Investments shall qualify as Independent Directors in accordance with
the Rules of the New York Stock Exchange and all other applicable laws
and regulations that may be enacted from time to time; and, the Chief
Executive Officer of NYMAGIC, INC. shall be entitled to nominate three
(3) directors for election to the Board, all of whom shall be
Independent Directors, as described in this Article IV(B), for a total
of eleven directors.
	 
	 	 	The Participating Shareholders shall, consistent with director
fiduciary duties, cause their nominees to vote for one of the Mariner
nominated members of the Board, as designated by Mariner as Chairman
of each meeting. If any of Robert G. Simses, Mark W. Blackman, or
Lionshead Investments does not nominate a candidate for the Board as
authorized under this Article IV (B), Mariner may instead nominate a
number of candidates equal to the number not nominated by these
individuals.
	 
	(C)	 	Provided that the candidates of the Participating Shareholders would
not be legally disqualified from serving as directors of the
Corporation, Mariner agrees to vote the Voting Shares in favor of the
election of such candidates or any successor or replacement candidates
nominated by the Participating Shareholders.
	 
	(D)	 	Subject to the provisions of the Corporation’s By-laws, any
Participating Shareholder entitled under this Article IV to designate
any director or successor director may, acting reasonably, replace any
director nominated by him at any time and from time to time with or
without cause, provided that any replacement director complies with
the provisions of Article IV (B).





ARTICLE V. COMPENSATION:




Members of the Board nominated by Mariner shall have the right to receive compensation paid by the
Corporation at any time or from time to time to members of the Board, including without limitation,
any salary, fees, expenses, pension or other benefits or emoluments and any amounts due under any
directors’ liability policy held by Mariner or the Corporation on behalf of the members of the
Board.



 


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ARTICLE VI. PURCHASE OPTION AGREEMENT:





	(A)	 	Mariner shall have the right to purchase at any time and from time to
time up to 1,350,000 shares of the Corporation from the Participating
Shareholders in the amounts set forth below opposite each
such Participating Shareholder’s name (that right, the “Option”; those shares,
the “Option Shares”), at the option price set forth in (B) below (the “Option
Price”):






	 	(1)	 	Mark W. Blackman — 225,000 Shares;
	 
	 	(2)	 	Lionshead Investments — 225,000 Shares;
	 
	 	(3)	 	the Louise Blackman Trustee — 900,000 Louise Blackman Shares, provided
that the Louise Blackman Trustee shall have the sole power to
determine the number of shares to be provided by either of the Louise
Blackman Trusts.






	(B)	 	The Option Price shall be as follows:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	From

	 	September 12, 2005
	 	to
	 	November 14, 2005
	 	 	 	$	22.50	 	 	 
	From

	 	November 15, 2005
	 	to
	 	February 14, 2006
	 	 	 	$	22.75	 	 	 
	From

	 	February 15, 2006
	 	to
	 	May 14, 2006
	 	 	 	$	23.00	 	 	 
	From

	 	May 15, 2006
	 	to
	 	August 14, 2006
	 	 	 	$	23.25	 	 	 
	From

	 	August 15, 2006
	 	to
	 	November 14, 2006
	 	 	 	$	23.50	 	 	 
	From

	 	November 15, 2006
	 	to
	 	February 14, 2007
	 	 	 	$	23.75	 	 	—
	From

	 	February 15, 2007
	 	to
	 	May 14, 2007
	 	 	 	$	24.00	 	 	 
	From

	 	May 15, 2007
	 	to
	 	August 14, 2007
	 	 	 	$	24.25	 	 	—
	From

	 	August 15, 2007
	 	to
	 	November 14, 2007
	 	 	 	$	24.50	 	 	 
	From

	 	November 15, 2007
	 	to
	 	February 14, 2008
	 	 	 	$	24.75	 	 	—
	From

	 	February 15, 2008
	 	to
	 	May 14, 2008
	 	 	 	$	25.00	 	 	 
	From

	 	May 15, 2008
	 	to
	 	August 14, 2008
	 	 	 	$	25.25	 	 	 
	From

	 	August 15, 2008
	 	to
	 	November 14, 2008
	 	 	 	$	25.50	 	 	 
	From

	 	November 15, 2008
	 	to
	 	February 14, 2009
	 	 	 	$	25.75	 	 	 
	From

	 	February 15, 2009
	 	to
	 	May 14, 2009
	 	 	 	$	26.00	 	 	 
	From

	 	May 15, 2009
	 	to
	 	August 14, 2009
	 	 	 	$	26.25	 	 	 
	From

	 	August 15, 2009
	 	to
	 	November 14, 2009
	 	 	 	$	26.50	 	 	 
	From

	 	November 15, 2009
	 	to
	 	February 14, 2010
	 	 	 	$	26.75	 	 	 
	From

	 	February 15, 2010
	 	to
	 	May 14, 2010
	 	 	 	$	27.00	 	 	 
	From

	 	May 15, 2010
	 	to
	 	August 14, 2010
	 	 	 	$	27.25	 	 	 
	From

	 	August 15, 2010
	 	to
	 	November 14, 2010
	 	 	 	$	27.50	 	 	 
	From

	 	November 15, 2010
	 	to
	 	December 31, 2010
	 	 	 	$	27.75	 	 	 







Less the cumulative amount of dividends paid by the Corporation in respect of each share of its
common stock from January 31, 2003 through to the date Mariner purchases such Option Shares.




	(C)	 	Except as set forth in ARTICLE VII (iv) below, the right to purchase
the Option Shares under this Purchase Option Agreement Clause shall
cease 30 days after the Termination Date.
	 
	(D)	 	The consideration for such Option Shares shall be paid in United
States Dollars, unless specifically agreed to the contrary in writing
by the Participating Shareholders.
	 
	(F)	 	Notwithstanding ARTICLE X (E) herein, (1) Mariner is permitted to
assign, in whole or in part, the Option (including any economic
benefit thereof) to any one or more of William J. Michaelcheck, William D. Shaw, Jr., George R. Trumbull and A. George Kallop or any other
individual employed by or acting as consultant for Mariner in connection with
the Corporation; and (2) Mariner and any assignee of the Option or any part
thereof is permitted to assign, in whole or in part, the Option (including any
economic benefit thereof) to any one or more other persons or entities, on
condition that the assignment is approved in writing by at least two
Participating Shareholders; provided, however, that any assignment of the
Option by any such assignee to a spouse or a child, or to a trust for the
benefit of a spouse or a child, shall not require the approval of any
Participating Shareholders. It is a condition to a valid assignment under this
clause (F) that the assignee acknowledges that it is bound by the terms of this
Agreement.




 


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ARTICLE VII. DURATION OF THIS AGREEMENT:




This Agreement shall terminate upon the earliest to occur of the following dates (the “Termination

Date”):




	 	(i)	 	December 31, 2010;
	 
	 	(ii)	 	the merger or consolidation of the Corporation into another corporation, the
sale of all or substantially all its assets or its dissolution and/or its
liquidation;
	 
	 	(iii)	 	immediately upon the resignation of Mariner as an advisor to the Corporation; or
	 
	 	(iv)	 	upon written notice of such termination to Mariner from all of the
Participating Shareholders, provided, that the Purchase Option Agreement
Clause set forth in Article VI above shall continue in full force and effect
until the close of business on December 31, 2010.





ARTICLE VIII. AMENDMENT OF THIS AGREEMENT:




This Agreement may be amended or extended (i) by the unanimous written consent of the Participating
Shareholders and (ii) with the written agreement of Mariner.



ARTICLE IX. TRANSFER OF SHARES:





	(A)	 	The Participating Shareholders retain the right to sell, gift,
bequest, pledge or hypothecate (each a “Transfer”) the Voting Shares
(the “Transferred Shares”) provided, that the recipient of any
Transferred Shares shall be subject to the terms of this Agreement as
if a signatory hereto and no such Transfer shall take place unless the
transferee agrees in writing to be bound by this Agreement. Each
Participating Shareholder effecting a Transfer must promptly notify
Mariner and the other Participating Shareholders of that Transfer. All
Transferred Shares shall contain a legend in the following form or
otherwise satisfactory to Mariner:






“The shares represented by this certificate are subject to certain voting agreements as set
forth in that certain Amended and Restated Voting Agreement dated October 12, 2005, as
amended from time to time, by and among the owner of this certificate, Mariner Partners,
Inc. and certain shareholders of NYMAGIC, INC., a copy of which is available for inspection
at the offices of the Secretary of NYMAGIC, INC.”




	(B)	 	Other than as permitted by clauses (A), no Participating Shareholder shall have the right to Transfer or sell the Voting Shares.




 


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ARTICLE X. MISCELLANEOUS:





	(A)	 	Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to
principles of conflicts of law.
	 
	(B)	 	Jurisdiction. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement
must be brought against any of the parties in the courts of the State
of New York, County of New York, or, if it has or can acquire
jurisdiction, in the United States District Court for the Southern
District of New York, and each of the parties consents to the
jurisdiction of those courts (and of the appropriate appellate courts)
in any such action or proceeding and waives any objection to venue
laid therein.
	 
	(C)	 	Severability. Any provision of this Agreement, which is prohibited or
unenforceable in any jurisdiction, shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof.
	 
	(D)	 	 Notices. All notices, consents, requests, instructions and other
communications provided for herein shall be in writing and shall be
deemed to have been sufficiently given or served, for all purposes, if
given to or served on the Participating Shareholders, at their
respective addresses as set forth on the signature page of this
Agreement and Mariner, c/o Mariner Partners, Inc., 500 Mamaroneck
Avenue, Harrison, NY 10528.
	 
	(E)	 	Binding Effect and Assignment. This Agreement and all of the
provisions shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns,
but, except as otherwise specifically provided herein, neither this
Agreement nor any of the rights, interests or obligations of the
parties hereto may be assigned without the prior written consent of
each other party hereto.
	 
	(F)	 	Specific Performance, Injunctive Relief. The parties hereto
acknowledge that if any party hereto breaches any of its obligations
under this Agreement, the other parties hereto will be irreparably
harmed and will have no adequate remedy at law for any such breach.
Therefore, it is agreed that, in addition to any other remedies that
may be available to any non-breaching party, upon any such breach any
non-breaching party may enforce the breaching party’s obligations
under this Agreement by specific performance, injunctive relief or by
any other means available to that non-breaching party at law or in
equity.
	 
	(G)	 	 Further Assurances. The parties hereto will each execute and deliver,
or cause to be executed and delivered, all further documents and
instruments and use its best efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations, to
consummate and make effective the transactions contemplated by this
Agreement.
	 
	(H)	 	Expenses. All costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such costs and
expenses.
	 
	(I)	 	Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this
Agreement and all of which together shall constitute one and the same
instrument.




 


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	MARINER PARTNERS, INC.	 	PARTICIPATING SHAREHOLDERS	 	 
	 
	 	 	 	 	 	 	 	 
	By:	 	/s/ William J. Michaelcheck	 	/s/ Mark W. Blackman	 	 
	 	 	 	 	 	 	 
	 	 	Name: William J. Michaelcheck	 	Mark W. Blackman	 	 
	 	 	Title: Chairman	 	Address:	 	 
	 	 	 	 	80 Deepwood Road	 	 
	 	 	 	 	Darien, CT 06820	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	LIONSHEAD INVESTMENTS LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	 /s/ John N. Blackman, Jr.	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	John N. Blackman, Jr. 
Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ Kathleen Blackman	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Kathleen Blackman 

Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Address:	 	 
	 	 	 	 	41 Wee Burn Lane	 	 
	 	 	 	 	Darien, CT 06820	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	/s/ Robert G. Simses	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Robert G. Simses	 	 
	 	 	 	 	(as trustee of the Louise Blackman Trusts)	 	 
	 	 	 	 	Address:	 	 
	 	 	 	 	Simses & Associates, P.A.	 	 
	 	 	 	 	400 Royal Palm Way, Suite 304	 	 
	 	 	 	 	Palm Beach, FL 33480	 	 





 


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