SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PROASSURANCE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 6631 63-1261433
(State or Other Jurisdiction of (Primary Standard Industrial (IRS Employer
Incorporation or Classification Code Number) Identification No.)
Organization)
100 BROOKWOOD PLACE
BIRMINGHAM, ALABAMA 35209
(205) 877-4400
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
AMENDED AND RESTATED
PROASSURANCE CORPORATION STOCK OWNERSHIP PLAN
(Full title of plan)
A. Derrill Crowe
100 Brookwood Place
Birmingham, Alabama 35209
(205) 877-4400
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
Copies to:
Jack P. Stephenson, Jr., Esq.
Burr & Forman LLP
420 North 20th Street, Suite 3100
Birmingham, Alabama 35203
(205) 458-5201
CALCULATION OF REGISTRATION FEE
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED (1) PER UNIT (2) AMOUNT OF OFFERING PRICE (2) REGISTRATION FEE (3)
---------------- -------------- ------------ --------------------------- --------------------
Common Stock
par value $0.01 100,000 shares $32.11 $3,211,000 $259.77
(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended (the
"Act"), the number of shares of securities registered under this
Registration Statement will be increased as a result of future stock
splits, stock dividends or similar transactions that occur prior to the
distribution of the securities covered by this Registration Statement.
In addition, pursuant to Rule 416(c) under the Act, this Registration
Statement also covers an indeterminate amount of plan interests to be
offered or sold pursuant to the Plan.
(2) In accordance with Rule 457(h)(2), no separate fee calculations are
made for plan interests. Estimated solely for the purposes of
calculating the amount of registration fee pursuant to Rule 457(h)
under the Act, based upon the average of the high and low price per
share of the Registrant's Common Stock on the New York Stock Exchange
on December 9, 2003.
(3) Pursuant to Rule 457(p) the filing fee has been offset against the
filing fee previously paid by the registrant in the amount of
$11,835.29 (net after prior offsets under Rule 457(p)) with respect to
unsold shares of common stock registered under registrant's
registration statement on Form S-4 (File No. 333-49378) as originally
filed on November 6, 2000, as amended by Post Effective Amendment No.
2, filed on January 25, 2002, to reflect the unsold shares.
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participants as specified by Rule 428(b)(1) of the
Act. This Registration Statement relates to 100,000 shares of ProAssurance
Common Stock that are to be purchased in the open market pursuant to the Amended
and Restated ProAssurance Corporation Stock Ownership Plan. The shares subject
to this Registration Statement are listed on the New York Stock Exchange.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Registrant with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(1) The Registrant's Quarterly Report on Form 10-Q for the
quarters ended September 30, 2003, June 30, 2003 and March 31,
2003;
(2) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2002; and
(3) The description of the Registrant's Common Stock contained in
the Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on June 8, 2001.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all such securities then remaining
unsold, shall be deemed to be incorporated by reference in and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Delaware law, the Registrant's certificate of
incorporation provides that the directors of the Registrant will not be held
personally liable for a breach of fiduciary duty as a director, except that a
director may be liable for (1) a breach of the director's duty of loyalty to the
corporation or its shareholders, (2) acts made in bad faith or which involve
intentional
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misconduct or a knowing violation of the law, (3) illegal payment of dividends
under Section 174 of the Delaware General Corporation Law; or (4) for any
transaction from which the director derives an improper personal benefit. The
Registrant's certificate of incorporation further provides that if Delaware law
is amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Registrant shall be eliminated or limited to the fullest extent permitted by
Delaware law, as so amended.
The by-laws of the Registrant provide that the Registrant will
indemnify any person involved in litigation brought by a third party or by or in
the right of the Registrant by reason of the fact that he or she is or was a
director, officer, employee or agent of the Registrant or is or was serving at
the request of the Registrant as a director, officer, employee or agent of
another entity. The Registrant will only indemnify such a person if that person
acted in good faith and in a manner he or she reasonably believed to be lawful
and in the best interests of the Registrant, except that the person will not be
entitled to indemnification in an action in which he or she is found to be
liable to the corporation unless the Delaware Court of Chancery deems
indemnification under these circumstances proper.
The Registrant maintains in effect directors' and officers' liability
insurance which provides coverage against certain liabilities. The Registrant
has entered into indemnification agreements with each of its directors and
executive officers which requires the Registrant to use reasonable efforts to
maintain such insurance during the term of the agreement so long as the Board of
Directors in the exercise of its business judgment determines that the cost is
not excessive and is reasonably related to the amount of coverage and that the
coverage provides a reasonable benefit for such cost. The indemnity agreements
automatically renew for successive one year terms unless sooner terminated by
Registrant on 60 days notice or upon the indemnitee's termination as an officer,
director or employee of Registrant or its subsidiaries.
The indemnity agreement requires the Registrant to indemnify the
executive officers and directors to the fullest extent permitted under Delaware
law to the extent not covered by liability insurance, including advances of
expenses in the defense of claims against the executive officer or director
while acting in such capacity. It is a condition to such indemnification that
the indemnitee acted in good faith and in a manner that he or she believed to be
in or not opposed to the interest of the Registrant or its shareholders, and
with respect to a criminal action had no reasonable cause to believe his or her
conduct was unlawful. Indemnification is not available from the Registrant:
(a) in respect to remuneration that is determined to be in
violation of law;
(b) on account of any liability arising from a suit for an
accounting of profits for the purchase and sale of
Registrant's common stock pursuant to Section 16(b) of the
Securities Exchange Act of 1934, as amended;
(c) on account of conduct that is determined to have been
knowingly fraudulent, deliberately dishonest or willful
misconduct;
(d) if indemnification is prohibited by the applicable laws of the
State of Delaware;
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(e) if the indemnitee is found to be liable to the Registrant or
its subsidiaries unless the Delaware Court of Chancery
determines that the indemnitee is fairly and reasonably
entitled to indemnification for expenses that the court deems
proper; or
(f) if a court should determine that such indemnification is not
lawful.
The indemnity agreement requires the indemnitee to reimburse the
Registrant for all reasonable expenses incurred or advanced in defending any
criminal or civil suit or proceedings against the indemnitee if the Registrant
determines that indemnity is not available.
The form of the indemnity agreement is included is an exhibit to the
Registrant's Annual Report on Form 10-K for the year ended December 31, 2002.
This summary of the indemnity agreement is qualified in its entirety by
reference to the terms and provisions of the form of the indemnity agreement.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The exhibits to this registration statement are listed in the Exhibit
Index to this registration statement, which Exhibit Index is hereby incorporated
by reference.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of
this registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement; provided, however, that
notwithstanding the foregoing, any increase
or decrease in volume of securities offered
(if the total dollar value of securities
offered would not exceed that which was
registered) and any deviation from the low
or high end of the estimated maximum
offering range may be reflected in the form
of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume
and price represent no more than a 20
percent change in the maximum aggregate
offering price set
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forth in the "Calculation of Registration
Fee" table in the effective registration
statement; and
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that the undertakings set forth in clauses
(i) and (ii) above do not apply if the information required to
be included in a post-effective amendment by those clauses is
contained in periodic reports filed by the registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this registration
statement;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
The registrant undertakes that for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer, or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Homewood, State of Alabama, on this the 3 day of
December, 2003.
PROASSURANCE CORPORATION
By: /s/ A. Derrill Crowe
-------------------------------
A. Derrill Crowe
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Frank B. O'Neil, Victor T. Adamo,
and Howard H. Friedman as his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him, and on his behalf and in
his name, place and stead, in any and all capacities, to sign, execute and file
this Registration Statement under the Securities Act of 1933, as amended, and
any or all amendments (including, without limitation, post-effective
amendments), with all exhibits and any and all documents required to be filed
with respect thereto, with the Securities and Exchange Commission or any
regulatory authority, granting unto such attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises in order to effectuate the same,
as fully to all intents and purposes as he himself might or could do if
personally present, hereby ratifying and confirming that such attorney-in-fact
and agent, or their substitute, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
---------------------------- ------------------------------- ----------------
/s/ A. Derrill Crowe Chairman of the Board and Chief December 3, 2003
-------------------------------------- Executive Officer (Principal
A. Derrill Crowe Executive Officer) and Director
/s/ Howard H. Friedman Senior Vice President, Chief December 3, 2003
-------------------------------------- Financial Officer (Principal
Howard H. Friedman Financial Officer) and Secretary
/s/ Victor T. Adamo Director December 3, 2003
--------------------------------------
Victor T. Adamo
/s/ Lucian F. Bloodworth Director December 3, 2003
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Lucian F. Bloodworth
/s/ Paul R. Butrus Director December 3, 2003
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Paul R. Butrus
/s/ Robert E. Flowers Director December 3, 2003
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Robert E. Flowers
/s/ John J. McMahon, Jr. Director December 3, 2003
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John J. McMahon, Jr..
/s/ John P. North, Jr. Director December 3, 2003
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John P. North, Jr.
/s/ Ann F. Putallaz Director December 3, 2003
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Ann F. Putallaz
/s/ William H. Woodhams Director December 3, 2003
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William H. Woodhams
/s/ Wilfred W. Yeargan, Jr. Director December 3, 2003
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Wilfred W. Yeargan, Jr.
EXHIBIT INDEX
EXHIBIT DESCRIPTION
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4.1 Amended and Restated ProAssurance Corporation Stock Ownership Plan
4.2 Enrollment Form
23.1 Consent of Ernst & Young, LLP
24.1 Power of Attorney (included in signature page)