As filed with the Securities and Exchange Commission on April 25, 2006
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------------
AMERICAN PHYSICIANS SERVICE GROUP, INC.
(Exact name of Registrant as specified in its charter)
Texas 75-1458323
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1301 Capital of Texas Highway, Suite C-300
Austin, Texas 78746
(Address of Principal Executive Offices)
2005 Incentive and Non-Qualified Stock Option Plan
of American Physicians Service Group, Inc.
AND
American Physicians Service Group, Inc. Affiliated Group
Deferred Compensation Master Plan
(Full Title of the Plans)
W. H. Hayes
Senior Vice President - Finance, Chief Financial Officer
1301 Capital of Texas Highway, Suite C-300
Austin, Texas 78746
(512) 328-0888
(Name, address and telephone number of agent for service)
Copy to:
Timothy L. LaFrey
Akin Gump Strauss Hauer & Feld LLP
300 West 6th Street, Suite 2100
Austin, Texas 78701
(512) 499-6200
----------------------
CALCULATION OF REGISTRATION FEE
========================================= ================= ====================== ====================== =================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Per Aggregate Offering Registration
to be Registered Registered Share(2) Price(2) Fee
----------------------------------------- ----------------- ---------------------- ---------------------- -----------------
----------------------------------------- ----------------- ---------------------- ---------------------- -----------------
Common Stock to be registered in 350,000 $14.92 $5,223,225 $558.89
respect of the 2005 Incentive and
Non-Qualified Stock Option Plan (1)
Common Stock to be registered in 150,000 $14.92 $2,238,525 $239.52
respect of the Affiliated Group
Deferred Compensation Master Plan
========================================= ================= ====================== ====================== =================
(1) Upon a future stock split, stock dividend or similar transaction
involving the common stock of the registrant and during the effectiveness
of this registration statement, the number of securities registered shall
be automatically increased to cover the additional securities in
accordance with Rule 416(a) under the Securities Act of 1933.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, based
on the average of the high and low price per common stock on April 19,
2006, as reported by NASDAQ.
INTRODUCTORY STATEMENT
On April 6, 2005, the board of directors of American Physicians Service
Group, Inc., referred to herein as the registrant or APSG, adopted the 2005
Incentive and Non-Qualified Stock Option Plan and submitted it to the
shareholders for consideration and approval. The shareholders of APSG approved
the plan at the annual meeting of shareholders held on June 14, 2005. On
December 7, 2004, the board of directors of APSG adopted the American Physicians
Service Group, Inc. Affiliated Group Deferred Compensation Master Plan and
submitted it to the shareholders for consideration and approval. The
shareholders of APSG approved the plan at the annual meeting of shareholders
held on June 14, 2005. This registration statement on Form S-8 is being filed
with the SEC in respect of both the 2005 Incentive and Non-Qualified Stock
Option Plan and the American Physicians Service Group, Inc. Affiliated Group
Deferred Compensation Master Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of this
registration statement on Form S-8 will be sent or given to plan participants as
specified in Rule 428(b)(1) promulgated under the Securities Act of 1933, as
amended, or the Securities Act. Such documents need not be filed with the
Securities and Exchange Commission, or the SEC, either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424 promulgated under the Securities Act. These documents and the documents
incorporated by reference in this registration statement pursuant to Item 3
below, taken together, constitute a prospectus that meets the requirement of
Section 10(a) of the Securities Act.
ITEM 1. PLAN INFORMATION.
The document(s) containing the information specified in Item 1 of this
registration statement on Form S-8 will be sent or given to plan participants as
specified in Rule 428(b)(1) promulgated under the Securities Act and may be
obtained by plan participants free of charge from the APSG Corporate Secretary.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The document(s) containing the information specified in Item 2 of this
registration statement on Form S-8 will be sent or given to plan participants as
specified in Rule 428(b)(1) promulgated under the Securities Act and may be
obtained by plan participants free of charge from the APSG Corporate Secretary.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information previously filed by APSG with the
SEC are incorporated by reference in this registration statement:
o Annual Report on Form 10-K for the year ended December 31, 2005; o
o Current Report on Form 8-K filed with the SEC on March 13, 2006;
o the description of common stock set forth in the registration statement
on Form 8-A, dated January 6, 1984, for registration of the common stock
pursuant to Section 12(g) of the Exchange Act of 1934, as
amended, or the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
In addition, all documents filed by APSG pursuant to Section 13(a), 13(c),
14 and 15(d) of the Exchange Act on or after the date of this registration
statement and prior to the filing of a post-effective amendment to this
registration statement that indicates that all securities offered hereby have
been sold or that deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this registration statement and to be
a part hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained hereby modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Article 2.02-1 of the Texas Business Corporation Act, or the TBCA, provides
that a Texas corporation shall have the power to indemnify anyone who was, is,
or may become a defendant or respondent to any threatened, pending, or completed
action, suit or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, or any appeal in such an action, suit or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding, because such person is or was a director of the
corporation, provided that (i) such person conducted himself in good faith, (ii)
such person reasonably believed (A) that in the case of conduct in his official
capacity as a director of the corporation that his conduct was in the
corporation's best interests and (B) in all other cases, that his conduct was at
least not opposed to the corporation's best interests, and (iii) in the case of
a criminal proceeding, such person has no reasonable cause to believe his
conduct was unlawful. The termination of a proceeding by judgment, order,
settlement, or conviction, or on a plea of nolo contendere or its equivalent, is
not of itself determinative that a director is not eligible for indemnification
by a corporation. Instead, a person shall be deemed to be liable in respect of
any claim, issue or matter only after a court of competent jurisdiction adjudges
the person liable and the person has exhausted all available appeals. APSG may
not indemnify a director as described above for obligations resulting from a
proceeding (i) in which such person is liable on the basis that he improperly
received personal benefit, whether or not the benefit resulted from an action
taken in his official capacity, or (ii) in which such person is found liable to
the corporation (except that in such cases APSG may indemnify such director
against reasonable expenses the director actually incurs in connection with the
proceeding unless the director's misconduct was willful, in which case APSG may
not pay such indemnification).
A corporation may provide indemnification as described above only if a
determination of indemnification is made: (i) by a majority vote of a quorum of
directors who the proceeding does not name as defendants or respondents at the
time of voting, regardless of whether the directors not named defendants or
respondents constitute a quorum; (ii) by a majority vote of a committee of the
board of directors, if (A) the committee is designated by a majority vote of the
directors who at the time of the vote are not named defendants or respondents in
the proceeding, regardless of whether the directors not named defendants or
respondents constitute a quorum, and (B) the committee consists solely of one or
more of the directors not named as defendants or respondents in the proceeding;
(iii) by special legal counsel selected by the board of directors or a committee
of the board by vote as set forth in (i) and (ii); or (iv) by the shareholders
in a vote that excludes the shares held by the directors who are named
defendants or respondents in the proceeding. A court may order indemnification
even though APSG does not meet certain of these conditions, if the court deems
indemnification proper and equitable; provided, however, that if the court
determines that the indemnified person is liable to the corporation or that he
improperly received a personal benefit, the court-ordered indemnification cannot
exceed the reasonable expenses that the indemnified party actually incurred in
connection with the proceeding.
A person may be indemnified by a corporation as previously described
against judgments, penalties (including excise and similar taxes), fines,
settlements, and reasonable expenses actually incurred by the person in
connection with the proceeding, provided, that if such a person is found liable
to the corporation or is liable on the basis that he or she improperly received
a personal benefit, the indemnification shall be limited to reasonable expenses
actually incurred by the person in connection with the proceeding and shall not
be available in respect of any proceeding in which the person shall have been
found liable for willful or intentional misconduct in the performance of his
duty to the corporation.
2
A corporation shall indemnify a director against reasonable expenses
incurred by him in connection with the proceeding in which he is a named
defendant or respondent because he is or was a director if he has been wholly
successful, on the merits or otherwise, in the defense of the proceeding. In
addition, if a director sues a corporation to recover indemnification in such a
case, the court, upon ordering the corporation to pay indemnification, shall
also award the director his expenses incurred in securing the indemnification. A
corporation may pay, or reimburse a director for, the director's reasonable
expenses incurred because he or she was, is, or may become a defendant
correspondent in a proceeding, in advance of any final disposition of the
proceeding and without any determination that the director is entitled to such
payment or reimbursement under the above-described standards after the
corporation receives a written affirmation by the director of his or her good
faith belief that he or she has met the standard of conduct necessary for
indemnification under Article 2.02-1 of the TBCA and a written undertaking by or
on behalf of the director (which must be an unlimited general obligation but
that need not be secured, and that may be accepted without reference to the
director's financial ability to pay) to repay the amount paid or reimbursed if
it is ultimately determined that the director has not met that standard or if it
is ultimately determined that indemnification of the director against expenses
incurred by such director in connection with that proceeding is prohibited under
the standards enumerated above. Notwithstanding the above, a corporation may pay
or reimburse a director for expenses incurred in connection with the director's
appearance as a witness or other participation in a proceeding at a time when
the director is not a named defendant or respondent in the proceeding.
Article 2.02-1 of the TBCA permits the purchase and maintenance of
insurance or another arrangement on behalf of directors, officers, employees and
agents of the corporation against any liability asserted against or incurred by
them in any such capacity or arising out of the person's status as such, whether
or not the corporation itself would have the power to indemnify any such officer
or director against such liability; provided, that if the insurance or other
arrangement is with a person or entity that is not regularly engaged in the
business of providing insurance coverage, the insurance or arrangement may
provide for payment of a liability with respect to which the corporation would
not have the power to indemnify the person only if the shareholders of the
corporation have approved including coverage for the additional liability.
Any indemnification of, or advance of expenses to, a director must be
reported in writing to shareholders with or before the notice or waiver of
notice of the next shareholders' meeting or before the next submission to
shareholders of a consent to action without a meeting, and, in any case, within
the12-month period immediately following such indemnification or advance.
A corporation shall indemnify officers and others who are not officers,
employees, or agents of the corporation, but who are serving at the
corporation's request as a director, officer, partner, venturer, proprietor,
trustee, employee, agent, or similar functionary for another entity, to the same
extent that the corporation indemnifies directors. A corporation may indemnify
and advance expenses to such officers and other persons to the same extent that
it may indemnify, or advance expenses to, directors.
Article IX of APSG's Restated Articles of Incorporation provides that, to
the extent permitted by applicable law and by resolution or other proper action
of the board of directors of APSG, APSG will indemnify its present and former
directors and officers, its employees and agents and any other person serving at
the request of APSG as a director, trustee, officer, employee or agent of
another corporation, partnership, joint venture, association, trust or other
enterprise, against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
any threatened, pending or completed action, suit or proceeding to which any
such person is, or is threatened to be made, a party and which may arise by
reason of the fact he is or was a person occupying any such office or position.
In addition, APSG currently maintains directors and officers' liability
insurance.
Article XVI of APSG's Restated Articles of Incorporation provides that APSG
directors shall not be liable to APSG or its shareholders for monetary damages
for an act or omission in the director's capacity as a director except for
liability based upon (i) a breach of duty of loyalty to APSG or its
shareholders, (ii) an act or omission not in good faith or that involves
intentional misconduct or a knowing violation of law, (iii) a transaction from
which a director received an improper benefit, whether or not the benefit
resulted from an action taken within the scope of the director's office, or (iv)
an act related to an unlawful stock repurchase or payment of a dividend.
3
In addition to the indemnifications provided by APSG's Restated Articles of
Incorporation, APSG has entered into indemnity agreements with its officers and
directors. The agreements generally provide that, to the extent permitted by
law, APSG must indemnify each person for judgments, expenses, fines, penalties
and amounts paid in settlement of claims that result from the fact that they
were was an officer, director or employee of APSG.
The preceding discussion of indemnification agreements, APSG's Restated
Articles of Incorporation and Section 2.02-1 of the Texas Business Corporation
Act is not intended to be exhaustive and is qualified in its entirety by the
indemnity agreements, Restated Articles of Incorporation and Section 2.02-1 of
the Texas Business Corporation Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description
---------- ------------
4.1* 2005 Incentive and Non-Qualified Stock Option Plan of American
Physicians Service Group, Inc.
4.2* American Physicians Service Group, Inc. Affiliated Group
Deferred Compensation Master Plan.
5.1* Opinion of Akin Gump Strauss Hauer & Feld LLP.
23.1* Consent of Akin Gump Strauss Hauer & Feld LLP (included in the
opinion filed as Exhibit 5.1 to this registration statement).
23.2* Consent of independent registered public accounting firm.
24.1* Power of Attorney (included on the signature page of this
registration statement).
---------------
*Filed herewith.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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 this registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that the undertakings set forth in paragraphs (1)(i) and
(1)(ii) above do not apply to a registration statement on Form S-8 if the
information required to be included in a post-effective amendment by these
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
4
(2) That, for the purpose of determining any liability under the Securities
Act, 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 undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act), that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, 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
may be permitted to directors, officers and controlling persons of APSG pursuant
to the foregoing provisions, or otherwise, APSG has been advised that in the
opinion of the SEC such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by APSG of
expenses incurred or paid by a director, officer or controlling person of APSG
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, APSG 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 and will be governed by the final adjudication
of such issue.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
APSG 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 Austin, State of Texas, on April 25, 2006.
AMERICAN PHYSICIANS SERVICE GROUP, INC.
By: /s/ Kenneth S. Shifrin
--------------------------------------------
Kenneth S. Shifrin
Chairman of the Board and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints each of Kenneth S. Shifrin and W.H. Hayes with the power to act without
the other, his or her true and lawful attorney-in-fact and agent with full power
of substitution and resubstitution, for him or her in his or her name, place and
stead, in any and all capacities, to sign on his or her behalf individually and
in each capacity stated below any or all amendments or post-effective amendments
to this registration statement, and to file the same, with all exhibits and
other documents relating thereto, granting unto said attorney-in-fact and agent,
and each of them, 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, as fully
to all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or either of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities indicated below on April 25, 2006.
Signature Title
--------- ----------
/s/ Kenneth S. Shifrin Chairman of the Board and Chief
----------------------- Executive Officer
Kenneth S. Shifrin (Principal Executive Officer)
/s/ W. H. Hayes Senior Vice President - Finance,
---------------------- Secretary and Chief
W. H. Hayes Financial Officer
(Principal Financial Officer)
/s/ Thomas R. Solimine Controller
---------------------- (Principal Accounting Officer)
Thomas R. Solimine
/s/ Jackie Majors Director
---------------------
Jackie Majors
/s/ Lew N. Little, Jr. Director
----------------------
Lew N. Little, Jr.
/s/ William A. Searles Director
-----------------------
William A. Searles
/s/ Cheryl Williams Director
----------------------
Cheryl Williams
5
INDEX TO EXHIBITS
Exhibit No. Description
---------- -----------
4.1* 2005 Incentive and Non-Qualified Stock Option Plan of American
Physicians Service Group, Inc.
4.2* American Physicians Service Group, Inc. Affiliated Group
Deferred Compensation Master Plan.
5.1* Opinion of Akin Gump Strauss Hauer & Feld LLP.
23.1* Consent of Akin Gump Strauss Hauer & Feld LLP (included in the
opinion filed as Exhibit 5.1 to this registration statement).
23.2* Consent of independent registered public accounting firm.
24.1* Power of Attorney (included on the signature page of this
registration statement).
---------------
*Filed herewith
7