Exhibit 99.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of July 7, 2003, is between
PROASSURANCE CORPORATION, a Delaware Corporation (together with any successor
entity, herein referred to as the "Issuer"), and the initial purchasers named in
the Purchase Agreement (as defined below) (the "Initial Purchasers") for whom
BANC OF AMERICA SECURITIES LLC and ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ SECURITIES LLC are acting as
representatives (in such capacity, the "Representatives").
Pursuant to the Purchase Agreement, dated July 1, 2003, between the Issuer
and the Initial Purchasers (the "Purchase Agreement"), the Initial Purchasers
have agreed to purchase from the Issuer up to $100,000,000 aggregate principal
amount of 3.90% Senior Convertible Debentures due 2023 (the "Convertible
Debentures"). The Convertible Debentures will be convertible into fully paid,
non-assessable shares of common stock of the Issuer, par value $0.01 per share
(the "Common Stock") on the terms, and subject to the conditions, set forth in
the Indenture (as defined herein). To induce the Initial Purchasers to purchase
the Convertible Debentures, the Issuer has agreed to provide the registration
rights set forth in this Agreement.
The parties hereby agree as follows:
1. DEFINITIONS.
The terms defined in this Section 1, whenever used herein, shall have the
following meanings for all purposes of this Agreement:
"Additional Amounts" shall have the meaning set forth in Section 3(a)
hereof.
"Additional Amounts Payment Date" shall mean each interest payment date
with respect to the Convertible Debentures.
"Affiliate" shall mean, with respect to any specified Person, an
"Affiliate," as defined in Rule 144 under the Securities Act, of such Person.
"Agreement" shall mean this Registration Rights Agreement.
"Broker-Dealer" shall mean any broker or dealer registered under the
Exchange Act.
"Business Day" shall mean each day of the year other than a Saturday or
Sunday or other day on which banking institutions in The City of New York are
required or authorized by law or regulation to close.
"Closing Date" shall mean the date of this Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Common Stock" shall have the meaning set forth in the preamble hereto.
"Control" shall mean, with respect to a Person, the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ability to exercise voting
power, by contract or otherwise.
"Conversion Price" shall have the meaning set forth in Section 1.1 of the
Indenture.
"Convertible Debentures" shall have the meaning set forth in the preamble
hereto.
"Effectiveness Period" shall have the meaning set forth in Section
2(a)(iii) hereof.
"Effectiveness Target Date" shall have the meaning set forth in Section
2(a)(ii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Holder" shall mean a Person who owns, beneficially or otherwise,
Registrable Securities.
"Indemnified Holder" shall have the meaning set forth in Section 6(a)
hereof.
"Indenture" shall mean the Indenture, dated as of July 7, 2003, between
the Issuer and the Trustee, pursuant to which the Convertible Debentures are to
be issued, as such Indenture is amended, modified or supplemented from time to
time in accordance with the terms thereof.
"Initial Placement" shall mean the issuance and sale by the Issuer of the
Convertible Debentures to the Initial Purchasers pursuant to the Purchase
Agreement.
"Initial Purchasers" shall have the meaning set forth in the preamble
hereto.
"Issuer" shall have the meaning set forth in the preamble hereto.
"Majority of Holders" shall mean Holders holding more than 50% of the
aggregate principal amount of Convertible Debentures outstanding; provided that,
for purpose of this definition, a Holder of shares of Common Stock that
constitute Registrable Securities shall be deemed to hold an aggregate principal
amount of Convertible Debentures (in addition to the principal amount of
Convertible Debentures held by such Holder) equal to the product of (x) the
number of shares of such Common Stock that are Registrable Securities held by
such Holder and (y) the Conversion Price in effect at the time the conversion
pursuant to which such Common Stock was issued occurred, as determined in
accordance with the Indenture.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Offering Memorandum" shall mean the final offering memorandum of the
Issuer relating to the Initial Placement dated July 1, 2003.
"Person" shall mean an individual, partnership, limited liability company,
corporation, unincorporated organization, trust, joint venture or a government
or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Shelf Registration
Statement, as amended or supplemented by any prospectus supplement and by all
other amendments thereto,
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including post-effective amendments, and all material incorporated by reference
into such Prospectus.
"Record Holder" shall mean, with respect to any Additional Amounts Payment
Date, each Person who is a Holder on the record date with respect to the
interest payment date on which such Additional Amounts Payment Date shall occur.
In the case of a Holder of shares of Common Stock that constitute Registrable
Securities, "Record Holder" shall mean each Person who is a Holder of shares of
Common Stock that constitute Registrable Securities on the June 15 or December
15 immediately preceding the Additional Amounts Payment Date.
"Registrable Securities" shall mean each Convertible Note and each share
of Common Stock issued upon conversion of Convertible Debentures until, in the
case of any such security, (A) the earliest of (i) its effective registration
under the Securities Act and resale in accordance with the Registration
Statement covering it, (ii) expiration of the holding period that would be
applicable thereto under Rule 144(k) under the Securities Act were it not held
by an Affiliate of the Issuer, (iii) its sale to the public pursuant to Rule 144
under the Securities Act, or (iv) the date such Convertible Note or share of
Common Stock issuable on conversion of Convertible Debentures shall have ceased
to be outstanding, and (B) as a result of the event or circumstance described in
any of the foregoing clauses (i), (ii) and (iii), the legends with respect to
transfer restrictions required under the Indenture are removed or removable in
accordance with the terms of the Indenture or such legend, as the case may be.
"Registration Default" shall have the meaning set forth in Section 3(a)
hereof.
"Registration Statement" shall mean any registration statement of the
Issuer that covers any of the Registrable Securities pursuant to the provisions
of this Agreement including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
"Representatives" shall have the meaning set forth in the preamble hereto.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shelf Filing Deadline" shall have the meaning set forth in Section
2(a)(i) hereof.
"Shelf Registration Statement" shall have the meaning set forth in Section
2(a)(i) hereof.
"Suspension Period" shall have the meaning set forth in Section 4(b)(i)
hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as in effect on the date
the Indenture is qualified under that act.
"Trustee" shall mean SouthTrust Bank.
"Underwriting Majority" shall mean on any date, Holders holding at least
66 2/3% of the aggregate principal amount of the Registrable Securities
outstanding on such date; provided, that for the purpose of this definition, a
holder of shares of Common Stock that constitute Registrable
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Securities shall be deemed to hold an aggregate principal amount of Registrable
Securities (in addition to the principal amount of Convertible Debentures held
by such holder) equal to (x) the number of such shares of Common Stock that are
Registrable Securities held by such Holder multiplied by (y) the Conversion
Price in effect at the time the conversion pursuant to which such Common Stock
was issued occurred, as determined in accordance with the Indenture.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which securities of the Issuer are sold to an underwriter for
reoffering to the public.
2. SHELF REGISTRATION.
(a) The Issuer shall:
(i) not later than 120 days after the date hereof (the "Shelf
Filing Deadline"), cause to be filed a registration
statement pursuant to Rule 415 under the Securities Act
(the "Shelf Registration Statement"), which Shelf
Registration Statement shall provide for resales of all
Registrable Securities held by Holders that have provided
the information required pursuant to the terms of Section
2(b) hereof;
(ii) use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective by the
Commission as promptly as is practicable, but in no event
later than 180 days after the date hereof (the "Effectiveness
Target Date"); and
(iii) subject to Section 4(b)(i) hereof, use its reasonable best
efforts to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by the
provisions of Section 4(b) hereof to the extent necessary to
ensure that (A) it is available for resales by the Holders of
Registrable Securities entitled to the benefit of this
Agreement and (B) conforms with the requirements of this
Agreement and the Securities Act and the rules and regulations
of the Commission promulgated thereunder as announced from
time to time for a period (the "Effectiveness Period") ending
on the earliest of:
(1) two years after the last date of original issuance of
any of the Convertible Debentures;
(2) the date when the Holders are able to sell all such
Registrable Securities immediately without restriction
pursuant to Rule 144(k) under the Securities Act;
(3) the date when all of the Registrable Securities of those
Holders that have provided the information required
pursuant to the terms of Section 2(b) hereof are
registered under the Shelf Registration Statement and
disposed of in accordance with the terms of the Shelf
Registration Statement; or
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(4) the date when all of the Registrable Securities of those
Holders that have provided the information required
pursuant to the terms of Section 2(b) hereof have ceased
to be outstanding (whether as a result of redemption,
repurchase and cancellation, conversion or otherwise).
(b) No Holder of Registrable Securities may include any of its
Registrable Securities in the Shelf Registration Statement and
related Prospectus pursuant to this Agreement unless such Holder
furnishes to the Issuer in writing, after the date of the
request, such information as the Issuer may reasonably request
for use in connection with the Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein and in any
application to be filed with or under state securities laws. In
connection with all such requests for information from Holders of
Registrable Securities, the Issuer shall notify such Holders of
the requirements set forth in the preceding sentence. No Holder
of Registrable Securities shall be entitled to Additional Amounts
pursuant to Section 3 hereof unless such Holder shall have
provided all such reasonably requested information. Each Holder
as to which the Shelf Registration Statement is being effected
agrees to furnish promptly to the Issuer all information required
to be disclosed in order to make information previously furnished
to the Issuer by such Holder not materially misleading.
3. ADDITIONAL AMOUNTS.
(a) If:
(i) the Shelf Registration Statement has not been filed with
the Commission prior to or on the Shelf Filing Deadline,
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the
Effectiveness Target Date,
(iii) subject to the provisions of Section 4(b)(i) hereof, the Shelf
Registration Statement is filed and declared effective but,
during the Effectiveness Period and after the Effectiveness
Target Date, shall thereafter cease to be effective or fail to
be usable for its intended purpose without being succeeded
within five Business Days by a post-effective amendment to the
Shelf Registration Statement, a prospectus supplement or a
report filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act that cures such failure
and, in the case of a post-effective amendment, is itself
declared effective within such five Business Day period,
(iv) prior to or on the 45th or 60th day, as the case may be, of
any Suspension Period, such suspension has not been
terminated, or
(v) the Suspension Periods exceed an aggregate of 120 days in
any 360-day period (each such event referred to in
foregoing clauses (i) through (v), a "Registration
Default"), then the Issuer hereby agrees to pay additional
amounts ("Additional Amounts") to each Holder from and
including the day
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following the Registration Default to but excluding the
earlier of (x) the day on which the Registration Default has
been cured or (y) the date the Shelf Registration Statement is
no longer required to be kept effective, accruing at a rate:
(A) with respect to such Holder's Convertible Debentures,
for the first 90-day period during which a
Registration Default shall have occurred and be
continuing, an amount equal to 0.25% per annum on the
principal amount of such Holder's Convertible
Debentures, increasing to an amount per annum on the
principal amount of such Holder's Convertible
Debentures equal to 0.50% on the 91st day, provided
that in no event shall the Additional Amounts
pursuant to this clause accrue at a rate per annum
exceeding 0.50% of the principal amount of such
Holder's Convertible Debentures;
(B) with respect to such Holder's Common Stock issued
upon conversion of Convertible Debentures, for the
first 90-day period during which a Registration
Default shall have occurred and be continuing, an
amount equal to 0.25% per annum on the principal
amount of such Holder's converted Convertible
Debentures, increasing to an amount per annum on the
principal amount of such Holder's converted
Convertible Debentures equal to 0.50% on the 91st
day, provided that in no event shall the Additional
Amounts pursuant to this clause accrue at a rate per
annum exceeding 0.50% of the principal amount of such
Holder's converted Convertible Debentures;
(b) All accrued Additional Amounts shall be paid in arrears to Record
Holders by the Issuer on each Additional Amounts Payment Date by
wire transfer of immediately available funds or by federal funds
check. Following the cure of all Registration Defaults relating to
any particular Convertible Note or share of Common Stock, the
accrual of Additional Amounts with respect to such Convertible Note
or share of Common Stock will cease.
All obligations of the Issuer set forth in this Section 3 that are
outstanding with respect to any Registrable Security at the time such
Registrable Security ceases to be a Registrable Security shall survive
until such time as all such obligations with respect to such Registrable
Security shall have been satisfied in full.
The Additional Amounts set forth above shall be the exclusive monetary
remedy available to the Holders of Registrable Securities for such
Registration Default.
4. REGISTRATION PROCEDURES.
(a) In connection with the Shelf Registration Statement, the Issuer
shall comply with all the provisions of Section 4(b) hereof and
shall, in accordance with Section 2 hereof, prepare and file with
the Commission a Shelf Registration Statement relating to the
registration on any appropriate form under the Securities Act.
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(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale
of Registrable Securities, the Issuer shall:
(i) Subject to any notice by the Issuer in accordance with this
Section 4(b) of the existence of any fact or event of the
kind described in Section 4(b)(iii)(D), use its reasonable
best efforts to keep the Shelf Registration Statement
continuously effective during the Effectiveness Period;
upon the occurrence of any event that would cause the Shelf
Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B)
not be effective and usable for resale of Registrable
Securities during the Effectiveness Period, the Issuer
shall file promptly an appropriate amendment to the Shelf
Registration Statement, a prospectus supplement or a report
filed with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act, in the case of clause (A),
correcting any such misstatement or omission, and, in the
case of either clause (A) or (B), use its reasonable best
efforts to cause such amendment to be declared effective
and the Shelf Registration Statement and the related
Prospectus to become usable for their intended purposes as
soon as practicable thereafter. Notwithstanding the
foregoing, the Issuer may, by written notice to the
Holders, suspend the Holders' use of the Prospectus for a
period not to exceed an aggregate of 45 days in any 90-day
period (each such period, a "Suspension Period") if:
(x) the Shelf Registration Statement is not usable solely
because a post-effective amendment to such Shelf
Registration Statement to incorporate financial
information with respect to the Issuer or any of its
subsidiaries is not yet effective and needs to be
declared effective to permit Holders to use the related
Prospectus; or
(y) an event occurs and is continuing as a result of
which the Prospectus would, in the Issuer's
reasonable judgment, contain an untrue statement of a
material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading, and the Issuer
reasonably determines in good faith that the
disclosure of such event at such time would have a
material adverse effect on the business of the Issuer
(and its subsidiaries, if any, taken as a whole);
provided, that (A) in the event the disclosure described in
clause (y) above relates to a previously undisclosed proposed
or pending material business transaction, the disclosure of
which would impede the Issuer's ability to consummate such
transaction, the Issuer may extend a Suspension Period from 45
days to 60 days and (B) the Suspension Periods shall not
exceed an aggregate of 120 days in any 360-day period. Each
Holder, by its acceptance of a Registrable Security, agrees to
hold in confidence any communication by the Issuer relating to
an event described in Section 4(b)(i)(y) or Section
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4(b)(iii)(D). The Issuer shall not be required to specify in
the written notice to the Holders the nature of the event
giving rise to the Suspension Period.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement
as may be necessary to keep the Shelf Registration Statement
effective during the Effectiveness Period; cause the
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the
disposition of all securities covered by the Shelf
Registration Statement during the applicable period in
accordance with the intended method or methods of distribution
by the sellers thereof set forth in the Shelf Registration
Statement or supplement to the Prospectus.
(iii) Advise the underwriter(s), if any, and the selling Holders
promptly and, if requested by such Persons, to confirm such
advice in writing:
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with
respect to the Shelf Registration Statement or any
post-effective amendment thereto, when the same has
become effective;
(B) of any request by the Commission for amendments to the
Shelf Registration Statement or amendments or
supplements to the Prospectus or for additional
information relating thereto;
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf
Registration Statement under the Securities Act or of
the suspension by any state securities commission of
the qualification of the Registrable Securities for
offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding
purposes; or
(D) of the existence of any fact or the happening of any
event, during the Effectiveness Period, that makes
any statement of a material fact made in the Shelf
Registration Statement, the Prospectus, any amendment
or supplement thereto, or any document incorporated
by reference therein untrue, or that requires the
making of any additions to or changes in the Shelf
Registration Statement or the Prospectus in order to
make the statements therein not misleading.
If at any time the Commission shall issue any stop order suspending
the effectiveness of the Shelf Registration Statement, or any state
securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification
of the Registrable Securities under state securities or
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blue sky laws, the Issuer shall use its reasonable best efforts to
obtain the withdrawal or lifting of such order at the earliest
possible time.
(iv) Furnish to one counsel for the selling Holders and each of the
underwriter(s), if any, before filing with the Commission, a
copy of the Shelf Registration Statement and copies of any
Prospectus included therein or any amendments or supplements
to either of the Shelf Registration Statement or Prospectus
(other than documents incorporated by reference after the
initial filing of the Shelf Registration Statement), which
documents will be subject to the review of such counsel and
underwriter(s), if any, for a period of two Business Days, and
the Issuer will not file the Shelf Registration Statement or
Prospectus or any amendment or supplement to the Shelf
Registration Statement or Prospectus (other than documents
incorporated by reference) to which such counsel or the
underwriter(s), if any, shall reasonably object within two
Business Days after the receipt thereof.
(v) Subject to the execution of a confidentiality agreement
reasonably acceptable to the Issuer, make available at
reasonable times for inspection by one or more
representatives of the selling Holders, designated in
writing by a Majority of Holders whose Registrable
Securities are included in the Shelf Registration
Statement, any underwriter, if any, participating in any
distribution pursuant to the Shelf Registration Statement,
and any attorney or accountant retained by the Majority of
Holders or any of the underwriter(s), all financial and
other records, pertinent corporate documents and properties
of the Issuer as shall be reasonably necessary to enable
them to exercise any applicable due diligence
responsibilities, and cause the Issuer's officers,
directors, managers and employees to supply all information
reasonably requested by any such representative or
representatives of the selling Holders, underwriter,
attorney or accountant in connection with the Shelf
Registration Statement after the filing thereof and before
its effectiveness; provided, however, that any information
designated by the Issuer as confidential at the time of
delivery of such information shall be kept confidential by
the recipient thereof.
(vi) If reasonably requested by any selling Holders or the
underwriter(s), if any, incorporate in the Shelf Registration
Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as
such selling Holders and underwriter(s), if any, shall, on the
basis of an opinion of a nationally recognized counsel
experienced in such matters, determine to be required to be
included therein by applicable law, including, without
limitation: (1) information relating to the "Plan of
Distribution" of the Registrable Securities, (2) information
with respect to the principal amount of Convertible Debentures
or number of shares of Common stock being sold, (3) the
purchase price being paid therefor and (4) any other terms of
the offering of the Registrable Securities to be sold in such
offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as reasonably
practicable after the Issuer is notified of
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the matters to be incorporated in such Prospectus supplement
or post-effective amendment.
(vii) Furnish to each selling Holder and each of the underwriter(s),
if any, without charge, at least one copy of the Shelf
Registration Statement, as first filed with the Commission,
and of each amendment thereto specifically naming such selling
Holder or underwriter (and any documents incorporated by
reference therein or exhibits thereto (or exhibits
incorporated in such exhibits by reference) as such Person may
request in writing).
(viii)Deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto specifically naming such
selling Holder or underwriter as such Persons reasonably may
request; subject to any notice by the Issuer in accordance
with this Section 4(b) of the existence of any fact or event
of the kind described in Section 4(b)(iii)(D), the Issuer
hereby consents to the use of the Prospectus and any amendment
or supplement thereto by each of the selling Holders and each
of the underwriter(s), if any, in connection with the offering
and the sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto.
(ix) If an underwriting agreement is entered into and the
registration is an Underwritten Registration in accordance
with Section 8 hereof, the Issuer shall:
(A) upon request, furnish to each selling Holder and each
underwriter in such substance and scope as they may
reasonably request and as are customarily made by
issuers to underwriters in primary underwritten
offerings, upon the date of closing of any sale of
Registrable Securities in an Underwritten Registration:
(1) a certificate, dated the date of such closing,
signed by (y) the Chairman of the Board or the
President and (z) the Chief Financial Officer of
the Issuer confirming, as of the date thereof,
such matters as such parties may reasonably
request;
(2) opinions, each dated the date of such closing, of
counsel to the Issuer covering such matters as are
customarily covered in legal opinions to
underwriters in connection with primary
underwritten offerings of securities; and
(3) customary comfort letters, dated the date of such
closing, from the Issuer's independent accountants
(and from any other accountants whose report is
contained or incorporated by reference in the
Shelf Registration Statement), in the customary
form and covering matters of the type customarily
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covered in comfort letters to underwriters in
connection with primary underwritten offerings of
securities;
provided, however, that the documents required pursuant
hereto need be addressed only to the underwriters and not
the selling Holders;
(B) set forth in full in the underwriting agreement
indemnification provisions and procedures customary for
such Underwritten Registrations; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or
other agreement entered into by the selling Holders
pursuant to this clause (ix).
(x) Before any public offering of Registrable Securities,
cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the
registration and qualification of the Registrable
Securities under the securities or blue sky laws of such
jurisdictions as the selling Holders or underwriter(s), if
any, may reasonably request and do any and all other acts
or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Registrable
Securities covered by the Shelf Registration Statement;
provided, however, that the Issuer shall not be required
(A) to register or qualify as a foreign corporation or a
dealer of securities where it is not now so qualified or to
take any action that would subject it to the service of
process in any jurisdiction where it is not now so subject
or (B) to subject itself to taxation in any such
jurisdiction if it is not now so subject.
(xi) Cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold
and not bearing any restrictive legends (unless required by
applicable securities laws); and enable such Registrable
Securities to be in such denominations and registered in such
names as the Holders or the underwriter(s), if any, may
reasonably request at least two Business Days before any sale
of Registrable Securities made by such underwriter(s).
(xii) Use its reasonable best efforts to cause the Registrable
Securities covered by the Shelf Registration Statement to be
registered with or approved by such other U.S. governmental
agencies or authorities as may be required by applicable law
to enable the seller or sellers thereof or the underwriter(s),
if any, to consummate the disposition of such Registrable
Securities, subject to the proviso in clause (x) above.
(xiii)Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or
have occurred, use its reasonable
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best efforts to prepare a supplement or post-effective
amendment to the Shelf Registration Statement or related
Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter
delivered to the purchasers of Registrable Securities, the
Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading.
(xiv) Provide CUSIP numbers for all Registrable Securities not later
than the effective date of the Shelf Registration Statement
and provide the Trustee under the Indenture with certificates
for the Convertible Debentures that are in a form eligible for
deposit with The Depository Trust Company.
(xv) Cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence
investigation by any underwriter that is required to be
retained in accordance with the rules and regulations of the
NASD.
(xvi) Otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission and all
reporting requirements under the rules and regulations of the
Exchange Act.
(xvii)Cause the Indenture to be qualified under the TIA not later
than the effective date of the Shelf Registration Statement
required by this Agreement, and, in connection therewith,
cooperate with the Trustee and the holders of Convertible
Debentures to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance
with the terms of the TIA; and execute and use its reasonable
best efforts to cause the Trustee thereunder to execute all
documents that may be required to effect such changes and all
other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a
timely manner.
(xviii)Cause all Registrable Securities covered by the Shelf
Registration Statement to be listed or quoted, as the case may
be, on each securities exchange or automated quotation system
on which securities issued by the Issuer of the same series
are then listed or quoted, it being understood that the
Convertible Debentures will not be so listed or quoted and
nothing herein shall require the Issuer to effect any such
listing or quotation of the Convertible Debentures.
(xix) Provide promptly to a Holder upon its written request each
document filed with the Commission pursuant to the
requirements of Section 13 or Section 15 of the Exchange Act
after the effective date of the Shelf Registration Statement,
unless such documents are available from ▇▇▇▇▇.
(xx) If requested by the underwriters in an Underwritten Offering,
make appropriate officers of the Issuer reasonably available
to the underwriters for
12
meetings with prospective purchasers of the Registrable
Securities and prepare and present to potential investors
customary "road show" material in a manner consistent with
other new issuances of other securities similar to the
Registrable Securities.
(c) Each Holder agrees by acquisition of a Registrable Security that,
upon receipt of any notice from the Issuer of the existence of any
fact of the kind described in Section 4(b)(iii)(D) hereof, such
Holder will, and will use its reasonable best efforts to cause any
underwriter(s) in an Underwritten Offering to, forthwith discontinue
disposition of Registrable Securities pursuant to the Shelf
Registration Statement until:
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 4(b)(xiii)
hereof; or
(ii) such Holder is notified in writing by the Issuer that the use
of the Prospectus may be resumed, and has received copies of
any additional or supplemental filings that are incorporated
by reference in the Prospectus, unless such filings are
available on ▇▇▇▇▇.
If so directed by the Issuer, each Holder will deliver to the Issuer
(at the Issuer's expense) all copies, other than permanent file
copies then in such Holder's possession, of the Prospectus covering
such Registrable Securities that was current at the time of receipt
of such notice of suspension.
(d) Each Holder who intends to be named as a selling Holder in the
Shelf Registration Statement shall furnish promptly to the Issuer
in writing after the date of the questionnaire requesting
information in the form attached to the Offering Memorandum as
Annex A, such information regarding such Holder and the proposed
distribution by such Holder of its Registrable Securities as the
Issuer may reasonably request for use in connection with the
Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. Holders that do not complete the
questionnaire and deliver it to the Issuer shall not be named as
selling securityholders in the Prospectus or preliminary
Prospectus included in the Shelf Registration Statement and
therefore shall not be permitted to sell any Registrable
Securities pursuant to the Shelf Registration Statement. Each
Holder who intends to be named as a selling Holder in the Shelf
Registration Statement shall promptly furnish to the Issuer in
writing all information required to be disclosed in order to make
information previously furnished to the Issuer by such Holder not
materially misleading and such other information as the Issuer
may from time to time reasonably request in writing.
5. REGISTRATION EXPENSES.
(a) Subject to Section 5(b) below, all expenses incident to the Issuer's
performance of or compliance with this Agreement shall be borne by
the Issuer regardless of whether a Shelf Registration Statement
becomes effective, including, without limitation:
13
(i) all registration and filing fees and expenses (other than
filings made by any Initial Purchasers or Holders with the
NASD);
(ii) all fees and expenses of compliance with federal securities
and state blue sky or securities laws;
(iii) all expenses of printing (including printing of Prospectuses
and certificates for the shares of Common Stock to be issued
upon conversion of the Convertible Debentures), messenger and
delivery services, and telephone;
(iv) all reasonable fees and disbursements of counsel to the Issuer
and, subject to Section 5(b) below, the Holders of Registrable
Securities;
(v) all application and filing fees in connection with listing of
(or authorizing for quotation of) the shares of Common Stock
on a national securities exchange or automated quotation
system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified public
accountants of the Issuer (including the expenses of any
special audit and comfort letters required by or incident to
such performance).
The Issuer shall bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal, accounting or other duties), the expenses of any
annual audit and the fees and expenses of any Person, including
special experts, retained by the Issuer.
(b) In connection with the Shelf Registration Statement required by
this Agreement, the Issuer shall reimburse the Initial Purchasers
and the Holders of Registrable Securities being registered
pursuant to the Shelf Registration Statement, as applicable, for
the reasonable fees and disbursements of not more than one
counsel, which shall be Shearman & Sterling LLP or such other
counsel chosen by a Majority of Holders for whose benefit the
Shelf Registration Statement is being prepared and is reasonably
acceptable to the Issuer. The Issuer shall not be required to pay
any underwriter discount, commission or similar fees related to
the sale of the Registrable Securities.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Issuer shall indemnify and hold harmless each Holder, such
Holder's directors, officers, employees, representatives, agents
and each person, if any, who controls such Holder within the
meaning of Section 15 of the Securities Act (each, an
"Indemnified Holder"), from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage,
liability or action relating to resales of the Registrable
Securities), to which such Indemnified Holder may become subject,
under the Securities Act or otherwise, insofar as any such loss,
claim, damage, liability or action arises out of, or is based
upon:
14
(i) any untrue statement or alleged untrue statement of a material
fact contained in the Shelf Registration Statement or
Prospectus or any amendment or supplement thereto; or
(ii) the omission or alleged omission to state in the Shelf
Registration Statement any material fact required to be stated
therein or necessary to make the statements therein not
misleading, or the omission or alleged omission to state in
the Prospectus any material fact required to be stated therein
or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
and shall reimburse each Indemnified Holder promptly upon demand for
any legal or other expenses, subject to Section 6(c) below,
reasonably incurred by such Indemnified Holder in connection with
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Issuer shall not be liable in
any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged
omission made in the Shelf Registration Statement or Prospectus or
amendment or supplement thereto in reliance upon and in conformity
with written information furnished to the Issuer by or on behalf of
any Holder (or its related Indemnified Holder) specifically for use
therein; provided, further, that as to any preliminary Prospectus,
this indemnity agreement shall not inure to the benefit of any
Indemnified Holder or any officer, employee, representative, agent,
director or controlling person of that Indemnified Holder on account
of any loss, claim, damage, liability or action arising from the
sale of the Registrable Securities sold pursuant to the Shelf
Registration Statement to any person by such Indemnified Holder if
(i) that Indemnified Holder failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that
person within the time required by the Securities Act and (ii) the
untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in such
preliminary Prospectus was corrected in the Prospectus or a
supplement or amendment thereto, as the case may be, unless in each
case, such failure resulted from noncompliance by the Issuer with
Section 4. The foregoing indemnity agreement is in addition to any
liability that the Issuer may otherwise have to any Indemnified
Holder.
(b) Each Holder, severally and not jointly, shall indemnify and hold
harmless the Issuer, its directors, officers, employees,
representatives, agents and each person, if any, who controls the
Issuer within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect
thereof, to which the Issuer or any such officer, employee,
representative, agent or controlling person may become subject,
insofar as any such loss, claim, damage or liability or action
arises out of, or is based upon:
15
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Shelf Registration Statement or
Prospectus or any amendment or supplement thereto; or
(ii) the omission or the alleged omission to state in the Shelf
Registration Statement any material fact required to be stated
therein or necessary to make the statements therein not
misleading, or the omission or alleged omission to state in
the Prospectus any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading,
but in each case only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished
to the Issuer by or on behalf of such Holder (or its related
Indemnified Holder) specifically for use therein, and shall
reimburse the Issuer and any such director, officer, employee,
representative, agent or controlling person promptly upon demand for
any legal or other expenses, subject to Section 6(c) below,
reasonably incurred by the Issuer and any such director, officer,
employee, representative, agent or controlling person in connection
with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any
liability that any Holder may otherwise have to the Issuer and any
such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 6, notify
the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure
to notify the indemnifying party shall not relieve it from any
liability that it may have under this Section 6 except to the
extent it has been materially prejudiced by such failure and,
provided, further, that the failure to notify the indemnifying
party shall not relieve it from any liability that it may have to
an indemnified party otherwise than under this Section 6. If any
such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and,
to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election
to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this
Section 6 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation; provided, however,
that the indemnified party shall have the right to employ counsel
to represent jointly the indemnified party and its respective
directors, employees, officers and controlling persons who may be
subject to liability arising out of any claim in respect of which
indemnity may be sought by the indemnified party against the
indemnifying party under this Section 6 if such indemnified party
shall have been advised in writing that
16
the representation of such indemnified party and those directors,
employees, officers and controlling persons by the same counsel
would be inappropriate under applicable standards of professional
conduct due to actual or potential differing interests between them,
and in that event the fees and expenses of such separate counsel
shall be paid by the indemnifying party. It is understood that the
indemnifying party shall not be liable for the fees and expenses of
more than one separate firm (in addition to local counsel in each
jurisdiction) for all indemnified parties in connection with any
proceeding or related proceedings. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 6(a) and
6(b), shall use its reasonable best efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No
indemnifying party shall:
(i) without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld)
effect any settlement of any pending or threatened action
in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an
unconditional release of such indemnified party from all
liability arising out of such claim, action, suit or
proceeding and does not include a statement as to or an
admission of fault, culpability or failure to act by or on
behalf of any indemnified party, or
(ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in
any such action, the indemnifying party agrees to indemnify
and hold harmless any indemnified party from and against any
loss of liability by reason of such settlement or judgment in
accordance with this Section 6.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party
under subsections (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified
party on the other from the Initial Placement (which in the case
of the Issuer shall be deemed to be equal to the total net
proceeds from the Initial Placement received by the Issuer), or
(ii) if the allocation provided by the foregoing clause (i) is
not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified
party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall
be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied
17
by the Issuer on the one hand or such Holder or such other
indemnified party, as the case may be, on the other, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding any other provision
of this Section 6(d), the Holders of the Registrable Securities
shall not be required to contribute any amount in excess of the
amount by which the gross proceeds received by such Holders from the
sale of the Registrable Securities pursuant to the Shelf
Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls such indemnified party within the meaning of
the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who
controls the Issuer within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the
Issuer.
(e) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Initial Purchaser, any
Holder or any person controlling any Initial Purchaser or any
Holder, or by or on behalf of the Issuer, its officers or
directors or any person controlling the Issuer, and (iii) any
sale of Registrable Securities pursuant to the Shelf Registration
Statement.
7. RULE 144A.
In the event the Issuer is not subject to Section 13 or 15(d) of the
Exchange Act, the Issuer hereby agrees with each Holder, for so long as any
Registrable Securities remain outstanding and are "restricted securities" within
the meaning of Rule 144 under the Securities Act, to make available, upon
request, to any Holder or beneficial owner of Registrable Securities in
connection with any sale thereof and any prospective purchaser of such
Registrable Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Registrable Securities pursuant to Rule 144A.
8. UNDERWRITTEN REGISTRATIONS.
(a) The Underwriting Majority may sell its Registrable Securities in an
Underwritten Offering pursuant to the Shelf Registration Statement
only with the Issuer's consent, which consent may be granted or
withheld in the Issuer's sole discretion.
(b) No Holder may participate in any Underwritten Registration
hereunder unless such Holder:
18
(i) agrees to sell such Holder's Registrable Securities on the
basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements;
and
(ii) completes and executes all reasonable questionnaires, powers
of attorney, indemnities, underwriting agreements, lock-up
letters and other documents reasonably required under the
terms of such underwriting arrangements.
(c) In any such Underwritten Offering, the investment banker or
investment bankers and manager or managers that will administer the
offering will be selected by a Majority of Holders whose Registrable
Securities are included in such Underwritten Offering; provided,
that such investment bankers and managers must be reasonably
satisfactory to the Issuer.
9. MISCELLANEOUS.
(a) Remedies. The Issuer acknowledges and agrees that any failure by
the Issuer to comply with its obligations under Section 2 hereof
may result in material irreparable injury to the Holders for
which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that,
in the event of any such failure, any Holder may obtain such
relief as may be required to specifically enforce the Issuer's
obligations under Section 2 hereof. The Issuer further agrees to
waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuer will not, on or after the
date of this Agreement, enter into any agreement with respect to
its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the
provisions hereof. Other than as disclosed in the Purchase
Agreement and the Offering Memorandum, the Issuer has not
previously entered into any agreement (which has not expired or
been terminated) granting any registration rights with respect to
its securities to any Person, which rights conflict with the
provisions hereof.
(c) Adjustments Affecting Registrable Securities. The Issuer shall not,
directly or indirectly, take any action with respect to the
Registrable Securities as a class that would adversely affect the
ability of the Holders of Registrable Securities to include such
Registrable Securities in a registration undertaken pursuant to this
Agreement.
(d) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given, unless
the Issuer has obtained the written consent of a Majority of
Holders affected by such amendment, modification, supplement,
waiver or consent; provided, however, that no amendment,
modification, supplement, waiver or consent to or departure from
the provisions of Section 6 that materially and adversely affects
a Holder hereof shall be effective as against any such Holder of
Registrable Securities unless consented to in writing by such
Holder; provided,
19
further, that with respect to any matter that directly or indirectly
adversely affects the rights of any Initial Purchaser hereunder
(other than in its capacity as a Holder), the Issuer shall obtain
the written consent of each such Initial Purchaser against which
such amendment, modification, supplement, waiver or consent is to be
effective.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt
requested), telex, telecopier, or air courier guaranteeing overnight
delivery:
(i) if to a Holder, at the address set forth on the records of
the registrar under the Indenture or the transfer agent of
the Common Stock, as the case may be; and
(ii) if to the Issuer:
ProAssurance Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Dr. A. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Chairman
Fax No.: (▇▇▇)▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ & ▇▇▇▇▇▇ LLP
3100 South Trust Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to the Initial Purchasers:
Banc of America Securities LLC
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Securities LLC
c/o Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Managing Director
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
20
with a copy to:
Shearman & Sterling LLP
Commerce Court West
Suite 4405, ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied or delivered via facsimile; and on the
next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee
or the transfer agent, as applicable, at the address specified in
the Indenture.
A document or notice shall be deemed to have been furnished to the
Holders of the Registrable Securities if it is provided to the
registered holders of the Registrable Securities at the address set
forth in clause (i) above.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and
transferees of each of the parties, including without limitation
and without the need for an express assignment, subsequent
Holders of Registrable Securities; provided, however, that (i)
nothing contained herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or
the Indenture and (ii) this Agreement shall not inure to the
benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign acquired
Registrable Securities from such Holder. If any transferee of any
Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities
such person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to receive the
benefits hereof. The Initial Purchasers (in their capacity as
Initial Purchasers) shall have no liability or obligation to the
Issuer with respect to any failure by a Holder to comply with, or
breach by any Holder of, any of the obligations of such Holder
under this Agreement.
(g) Purchases and Sales of Convertible Debentures. The Issuer shall not,
and shall use its reasonable best efforts to cause its subsidiaries
within its Control not to, resell or otherwise transfer any
Convertible Debentures acquired by the Issuer or such
21
subsidiaries, except pursuant to an effective registration statement
under the Securities Act or an exemption therefrom.
(h) Third Party Beneficiaries. The Holders shall be third-party
beneficiaries to the agreements made hereunder between the Issuer
and the Initial Purchasers, and such Initial Purchasers, so long as
they are also Holders, shall have the right to enforce such
agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of
Holders hereunder.
(i) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
(j) Securities Held by the Issuer or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable
Securities held by the Issuer or its affiliates (as such term is
defined in Rule 405 under the Securities Act) shall not be deemed
outstanding and, therefore, shall not be counted in determining
whether such consent or approval was given by the Holders of such
required percentage.
(k) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
(l) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(m) Severability. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability
of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired
thereby.
(n) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a
final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Issuer
with respect to the Registrable Securities. This Agreement
supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Very truly yours,
PROASSURANCE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Operating Officer
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇
Title: Senior Vice President and Assistant
Secretary
The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written.
BANC OF AMERICA SECURITIES LLC, as
representative of the Initial Purchasers
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
23