As filed with the Securities and Exchange Commission on February 18, 1999
Registration No. 333-______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
FPIC INSURANCE GROUP, INC.
(Exact name of registrant as specified in its charter)
Florida No. 59-3359111
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1000 Riverside Avenue, Suite 800, Jacksonville,
Florida 32204 (Address of principal executive
office, including zip code)
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OMNIBUS INCENTIVE PLAN
(Full title of plan)
-----------------------
John R. Byers, Esq.
Executive Vice President and General Counsel
FPIC Insurance Group, Inc.
1000 Riverside Avenue, Suite 800, Jacksonville Florida 32204
(904) 354-5910
(Name, address and telephone number, including area code, of agent for service)
-----------------------
Copies to:
Michael B. Kirwan, Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
50 North Laura Street, Suite 2800
Jacksonville, Florida 32202
(904) 354-8000
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each class Proposed Proposed maximum
of securities to be Amount to be maximum offering aggregate offering Amount of
registered registered price per share* price* registration fee
<S> <C> <C> <C> <C>
Common Stock, 1,165,000 $42.75 $49,803,750 $13,845.44
$.10 par value per shares
share
======================= ======================= ======================= ======================== =====================
</TABLE>
*Determined on the basis of the average of the high and low sale price on
February 16, 1999, solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act of 1933 ")
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are hereby incorporated by reference in
this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1997.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998, and September 30, 1998.
(c) Description of the Company's Common Stock as set forth in the
Registration Statement on Form 8-A/A dated July 30, 1996.
(d) The Company's reports on Form 8-K, filed with the Commission on July
15, 1998 and January 21, 1999.
All other documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
securities offered 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 thereof from the date of filing of such
documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
that also is or is deemed to be incorporated by reference herein) modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed to constitute a part hereof except as so modified or superseded.
Item 4. Description of Securities.
Not applicable.
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<PAGE>
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article VI of the Bylaws of the Company provides for indemnification of the
Company's directors, officers, employees or agents in accordance with the laws
of the State of Florida.
Section 607.0850(1) of the Florida Business Corporation Act (the "FBCA")
empowers a corporation to indemnify any person who was or is a party to any
proceeding (other than an action by or in the right of the corporation) by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against liability incurred in connection with such proceeding
(including any appeal) if he or she acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
Section 607.0850(2) of the FBCA empowers a corporation to indemnify any
person who was or is a party to any proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth in the preceding paragraph,
against expenses and amounts paid in settlement not exceeding, in the judgment
of the board of directors, the estimated expenses of litigating the proceeding
including appeals, provided that the person acted under the standards set forth
in the preceding paragraph. However, no indemnification may be made for any
claim, issue or matter as to which such person is adjudged to be liable unless,
and only to the extent that, the court in which such proceeding was brought, or
any other court of competent jurisdiction, determines upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses that the court deems proper.
Section 607.0850(3) of the FBCA provides that to the extent a director,
officer, employee or agent of a corporation has been successful on the merits or
otherwise in the defense of any proceeding referred to in subsections (1) and
(2) of Section 607.0850 or in the defense of any claim, issue or matter therein,
he or she shall be indemnified against expenses actually and reasonably incurred
by him or her in connection with the defense.
Section 607.0850(4) of the FBCA provides that any indemnification under
subsections (1) and (2) of Section 607.0850, unless determined by a court, shall
be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he or she has met the applicable standard
of conduct set forth in subsections (1) and (2) of Section 607.0850. Such
determination shall be made:
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<PAGE>
(a) by the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such proceeding;
(b) if such a quorum is not obtainable, or, even if obtainable, by a
majority vote of a committee duly designated by the board of directors (in which
directors who are parties may participate) consisting solely of two or more
directors not at the time parties to the proceeding;
(c) by independent legal counsel:
(1) selected by the board of directors as prescribed in paragraph (a)
or a committee selected as prescribed in paragraph (b); or
(2) if no quorum of directors can be obtained under paragraph (a)
and no committee can be designated under paragraph (b), by a majority vote of
the full board of directors (in which directors who are parties may
participate); or
(d) by the shareholders by a majority vote of a quorum of shareholders who
were not parties to such proceedings or if no quorum is obtainable, by a
majority vote of shareholders who were not parties to such proceeding.
Expenses incurred by a director or officer in defending a civil or criminal
proceeding may be paid by the corporation in advance of the final disposition
thereof upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it is ultimately determined that such director
or officer is not entitled to indemnification under Section 607.0850.
Section 607.0850(7) of the FBCA states that indemnification and advancement
of expenses are not exclusive and empowers the corporation to make any other
further indemnification or advancement of expenses of its directors, officers,
employees or agents under any bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, for actions in an official capacity and in
other capacities while holding an office. However, a corporation cannot
indemnify or advance expenses if a judgment or other final adjudication
establishes that the actions of the director, officer, employee or agent (a)
violated criminal law, unless the director, officer, employee or agent had
reasonable cause to believe his or her conduct was lawful or had no reasonable
cause to believe his or her conduct was unlawful, (b) derived an improper
personal benefit from such transaction, (c) was or is a director in a
circumstance where the liability under Section 607.0834 of the FBCA (relating to
unlawful distributions) applies, or (d) engages in willful misconduct or
conscious disregard for the best interests of the corporation in a proceeding by
or in right of the corporation to procure a judgment in its favor or in a
proceeding by or in right of a shareholder.
Section 607.0850(9) of the FBCA permits any director, officer, employee or
agent who is or was a party to a proceeding to apply for indemnification or
advancement of expenses to any court of competent jurisdiction.
Section 607.0850(12) of the FBCA permits a corporation to purchase and
maintain insurance for a director, officer, employee or agent against any
liability incurred in his or her official capacity or arising out of his or her
status as such regardless of the corporation's power to indemnify him or her
against such liability under this section.
II-3
<PAGE>
According to Section 607.0831 of the FBCA, a director is not personally
liable for monetary damages to the Company or any other person for any
statement, vote, decision or failure to act, regarding corporate management or
policy, unless the director breached or failed to perform his duties as a
director and the director's breach of, or failure to perform those duties
constitutes: (i) a violation of criminal law, unless the director had reasonable
cause to believe his conduct was lawful or had no reason to believe his conduct
was unlawful; (ii) a transaction from which the director derived improper
personal benefit; (iii) a violation of Section 607.0834 of the FBCA, which
concerns unlawful payment of dividends; or (iv) in a proceeding by or in the
right of the corporation or a proceeding by or in the right of someone other
than the corporation or a stockholder, conscious disregard for the best interest
of the corporation, or willful misconduct, or recklessness or an act or omission
which was committed in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety or property.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
We have listed the Exhibits required to be filed with this Registration
Statement in the following Exhibit Index. We incorporate by reference those
exhibits that have previously been filed with the Commission.
Item 9. Undertakings.
The Company 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 the 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. 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 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 forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(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;
II-4
<PAGE>
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Company pursuant to section 13 or section 15(d) of the Exchange Act, that are
incorporated by reference in the 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.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Company'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 the 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.
(5) That, insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions described under Item 6 above,
or otherwise, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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 Act and will be governed by the final adjudication of
such issue.
II-5
<PAGE>
SIGNATURES
The Registrant. 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 Jacksonville, state of Florida, on the 18th day of
February, 1999.
FPIC INSURANCE GROUP, INC.
(Registrant)
By: /s/ William R. Russell
-----------------------------------
William R. Russell
President and Chief Executive Officer
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<PAGE>
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints William R. Russell, Robert B. Finch,
Donald J. Sabia, Charles W. Emanuel and John R. Byers, and each of them (with
full power in each to act alone), as his true and lawful attorneys- in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto such
attorneys-in-fact and agents, 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 might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their or his substitute or
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 on February 18, 1999.
Signature Title
--------- -----
/s/ James G. White, M.D. Chairman of the Board of Directors
- ------------------------------------
James G. White, M.D.
/s/ Guy T. Selander, M.D. Vice Chairman of the Board of Directors
- ------------------------------------
Guy T. Selander, M.D.
Director
- ------------------------------------
Gaston J. Acosta-Rua, M.D.
/s/ James W. Bridges, M.D. Director
- ------------------------------------
James W. Bridges, M.D.
/s/ J. Stewart Hagin, M.D. Director
- ------------------------------------
J. Stewart Hagin, M.D.
/s/ D. L. Van Eldik, M.D. Director
- ------------------------------------
D. L. Van Eldik, M.D.
/s/ Henry M. Yonge, M.D. Director
- ------------------------------------
Henry M. Yonge, M.D.
II-7
<PAGE>
/s/ Curtis E. Gause, D.D.S. Director
- ------------------------------------
Curtis E. Gause, D.D.S.
/s/ Frank Moya, M.D. Director
- ------------------------------------
Frank Moya, M.D.
/s/ David M. Shapiro, M.D. Director
- ------------------------------------
David M. Shapiro, M.D.
/s/ Richard J. Bagby, M.D. Director
- ------------------------------------
Richard J. Bagby, M.D.
/s/ Robert O. Baratta, M.D. Director
- ------------------------------------
Robert O. Baratta, M.D.
/s/ Louis C. Murray, M.D. Director
- ------------------------------------
Louis C. Murray, M.D.
/s/ William R. Russell President, Chief Executive Officer and
- ------------------------------------ Director (Principal Executive Officer)
William R. Russell
/s/ Robert B. Finch Executive Vice President and Treasurer
- ------------------------------------ (Principal Financial Officer)
Robert B. Finch
/s/ Donald J. Sabia Vice President and Controller (Principal
- ------------------------------------ Accounting Officer)
Donald J. Sabia
II-8
<PAGE>
EXHIBIT INDEX
Exhibit
No.
- -----------
3(a) Restated Articles of Incorporation of the Company, (incorporated
by reference to Exhibit 3(a) to the Company's Registration
Statement on Form S-4 (File No. 333-2040), first filed with the
Commission on March 7, 1996)
3(b) Bylaws of the Company, as amended
5 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
23(a) Consent of KPMG, LLP
23(b) Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included
in Exhibit 5)
24 Power of Attorney (included on the signature page of this
Registration Statement)
99 Omnibus Incentive Plan (incorporated by reference to Appendix
A-2 of the Company's Definitive Proxy Statement filed with the
Commission on May 8, 1998)
II-9
As Amended through
September 12, 1998
BYLAWS OF
FPIC INSURANCE GROUP, INC.
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1. Annual Meeting. A meeting of the shareholders of the Corporation
shall be held annually for the election of directors and for the transaction of
other business, at such time and place, within or outside the State of Florida,
as the Board of Directors may from time to time determine.
Section 2. Special Meetings. Special meetings of the shareholders shall be
held (i) when called by the Board of Directors, the President or the Secretary
of the Corporation or (ii) if the holders of not less than 10 percent of all the
votes entitled to be cast on any issue proposed to be considered at the proposed
special meeting sign, date and deliver to the Corporation's Secretary one or
more written demands for the meeting describing the purpose or purposes for
which it is to be held.
Section 3. Notice. Written notice stating the place, day and hour of the
meeting of shareholders (whether annual or special) and, in the case of a
special meeting, the purpose or purposes for which the meeting is called, shall
be delivered to each shareholder of record entitled to vote at such meeting not
less than ten (10) nor more than sixty (60) days before the meeting. The written
notice shall be delivered personally, by first class mail, or by any form of
accepted electronic communication, by or at the direction of the President, the
Secretary, or the officer or persons calling the meeting. If the notice is
mailed at least thirty (30) days before the date of the meeting, it may be done
by a class of United States mail other than first class. If mailed, such written
notice shall be deemed to be delivered when deposited in the United States mail,
with postage prepaid, addressed to the shareholder at the address as it appears
on the stock transfer books of the Corporation.
Section 4. Notice of Adjourned Meetings. When a meeting is adjourned to
another time or place, it shall not be necessary to give any notice of the
adjourned meeting if the time and place to which the meeting is adjourned are
announced at the meeting at which the adjournment is taken, and at the adjourned
meeting any business may be transacted that might have been transacted on the
original date of the meeting. If, however, after the adjournment, the Board of
Directors fixes a new record date for the adjourned meeting, a notice of the
adjourned meeting shall be given as provided in Section 3 of this Article I to
each shareholder of record on the new record date entitled to vote at that
meeting.
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Section 5. Fixing Record Dates. The Board of Directors may fix in advance a
date as the record date for any determination of shareholders, such date in any
case to be not more than seventy (70) days prior to the date on which the
particular action requiring such determination of shareholders is to be taken.
If no record date is fixed for the determination of shareholders entitled to
notice of or to vote at a meeting of shareholders, the date on which notice of
the meeting is mailed shall be the record date for such determination of
shareholders.
Section 6. Voting. Except as otherwise provided under Section 607.0902 of
the Florida Statutes and other Florida laws, at all times each and every
shareholder having the right and entitled to vote at a meeting of the
shareholders shall be entitled, upon each matter coming to a vote at meetings of
shareholders, to one vote for each share of voting stock recorded and standing
in the name of the shareholder on the books of the Corporation on the record
date fixed as provided in Section 5 of this Article I. Cumulative voting shall
not be allowed.
Section 7. Quorum. A majority of the shares entitled to vote, represented
in person or by proxy, shall constitute a quorum at any shareholders' meeting.
If a quorum is established at the outset of any meeting, the affirmative vote of
the majority of the shares represented and entitled to vote on the subject
matter at the meeting shall be the act of the shareholders, unless otherwise
provided in the Corporation's Articles of Incorporation. After a quorum has been
established at any meeting of shareholders, the subsequent withdrawal of
shareholders, so as to reduce the number of shareholders entitled to vote at the
meeting below the number required for a quorum, shall not affect the validity of
any action taken at the meeting or any adjournment of the meeting.
Section 8. Proxies. Every shareholder entitled to vote at any meeting of
shareholders or to express consent or dissent without a meeting, or any
shareholder's duly authorized attorney-in-fact, may authorize another person or
persons to act for him or her by proxy. Every proxy must be signed by the
shareholder or his or her attorney-in-fact and shall be revocable at the
pleasure of the shareholder or attorney-in-fact executing it, except as
otherwise provided by law. No proxy shall be valid after the expiration of
eleven (11) months from the date thereof unless otherwise specifically provided
in the proxy.
Section 9. Record of Shareholders Having Voting Rights. The officer or
agent of the Corporation having charge of the stock transfer books for shares of
the Corporation shall make, at least ten (10) days before each meeting of
shareholders, a complete alphabetical list of the shareholders entitled to vote
at such meeting or any adjournment of such meeting, with the address of, and the
number and class and series, if any, of shares held by, each. Such list shall be
kept on file at the principal office of the Corporation for a period of ten (10)
days prior to such meeting, or such shorter time as exists between the record
date and the meeting, and shall be subject to inspection by any shareholder at
any time during usual business hours. Such list also shall be produced and kept
open at the time and place of the meeting relating to which such list was
produced and shall be subject to the inspection of any shareholder at any time
during such meeting.
2
<PAGE>
Section 10. Presiding Officers. The President, or in the absence of the
President, the Chairman, shall preside over meetings of shareholders. The
recording officer shall be the Secretary of the Corporation or, in the absence
of the Secretary, such other person as the meeting may appoint.
Section 11. Action of Shareholders Without a Meeting. Any action required
to be taken or that may be taken at any annual or special meeting of
shareholders, may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding shares of stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote on such action were present
and voted. If any class of shares is entitled to vote on such action as a class,
such written consent shall be required of the holders of a majority of the
shares of each such class of shares entitled to vote as a class and of the total
shares entitled to vote on such action. Within ten (10) days after obtaining
shareholder authorization for any action by written consent, notice in writing
shall be given to those shareholders who have not signed the written consent or
who are not entitled to vote on the action. Such written notice shall fairly
summarize the material features of the authorized action and, if the action is a
merger, consolidation, or sale or exchange of assets for which dissenter's
rights are provided by law, the notice shall contain a clear statement of the
right of shareholders dissenting therefrom to be paid the fair value of their
shares upon compliance with the procedures provided by law for the exercise of
the rights of dissenting shareholders.
ARTICLE II
DIRECTORS
Section 1. General Powers. The Board of Directors shall have the management
and control of the business of the Corporation. All corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
Corporation shall be managed under the direction of, the Board of Directors. In
addition to the power and authority by these Bylaws expressly conferred upon it,
the Board of Directors may exercise all such powers as are expressly or by
implication conferred on the Board of Directors by the Articles of
Incorporation, these Bylaws or the laws of Florida.
Section 2. Qualifications. All members of the Board of Directors shall be
between 18 and 70 years of age; provided, that (i) any director who is elected
prior to becoming 70 years of age may complete his then current term as a
director and (ii) any director serving as of January 10, 1998 who as of such
date is older than 70 years of age or who will become older than 70 years of age
during his then current term as a director will be eligible to serve one
additional term as a director for the term commencing upon the termination of
his then current term. A majority of the Directors must be citizens of the
United States. All members of the Board of Directors must be shareholders of the
Corporation. No person shall serve as a Director if such person is a director or
trustee of a competitive professional liability insurance company, competitive
professional liability insurance
3
<PAGE>
reciprocal, competitive professional liability insurance trust or any other
competitive professional liability entity.
Section 3. Compensation. By resolution of the Board of Directors, any
director may be paid his or her expenses, if any, for attendance at any meeting
of the Board of Directors, and may be paid such compensation for the performance
of his or her duties as a director as the Board of Directors shall determine,
either in the form of an annual salary, a fee for attendance at each meeting or
such other form of compensation as the Board of Directors shall deem
appropriate. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation for such service.
Section 4. Quorum and Voting. A majority of the number of directors fixed
by these Bylaws shall constitute a quorum for the transaction of business unless
a greater number is required by the Articles of Incorporation. Except as
otherwise provided in the Articles of Incorporation, the act of a majority of
the directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors.
Section 5. Time of Meeting. An annual meeting of the Board of Directors
shall be held following the annual meeting of shareholders each year, and other
meetings of the Board of Directors shall be held at such times thereafter as the
Board of Directors may fix and at other times upon the call of the Chairman or
President or by not less than one-fifth of the total number of directors then
elected and serving. Notice of each special meeting shall be given by the
Secretary to each director not less than one day before the meeting, unless such
director shall waive notice thereof before, at or after the meeting. The
directors may act at a meeting conducted by means of conference telephone or
other means of accepted communication provided all persons participating in such
meeting can hear each other at the same time.
Section 6. Action Without a Meeting. Any action required to be taken or
that may be taken at any meeting of the Board of Directors may be taken without
a meeting if a consent in writing, setting forth the action so taken and signed
by all directors, is filed in the minutes of the proceedings of the Board of
Directors. Such consent shall have the same effect as a unanimous vote, and
shall be effective the date the last director signs the consent, unless the
consent specifies a different effective date.
Section 7. Committees.
(a) Executive and Nominating Committees. The Board of Directors, by
resolution adopted by a majority of the full Board of Directors, shall appoint
from among its members (i) an executive committee, which shall have and may
exercise all of the authority of the Board of Directors to the full extent
allowed by law, and (ii) a nominating committee, which shall make
recommendations to the Board of Directors as to nominees for election to the
Board of Directors and to the boards of directors of the subsidiaries of the
Corporation. The Chairman of the Board of Directors shall submit to the Board of
Directors nominees for appointment to the
4
<PAGE>
executive committee and the nominating committee. The Executive Committee shall
meet and take action whenever (i) the Chairman of the Board of Directors
determines that a meeting of the full Board of Directors is not practical and
(ii) action is required to be taken on matters the Chairman of the Board of
Directors determines to be of an urgent nature. The taking of an action by the
Executive Committee shall result in and constitute a conclusive presumption that
the required determinations by the Chairman of the Board of Directors specified
in the immediately preceding sentence have been made with respect to such
action.
(b) Standing Committees. Subject to the approval of the Board of Directors,
the Chairman of the Board of Directors shall appoint the members of the
following standing committees:
(i) an audit committee;
(ii) a budget and compensation committee;
(iii) an investment committee; and
(iv) a bylaws committee.
Such standing committees shall have such duties and powers as the Board of
Directors shall from time to time designate or authorize. The Board of Directors
also may appoint such other committees as it shall consider necessary and
appropriate and with such duties and powers as the Board of Directors shall from
time to time designate or authorize.
Section 8. Nomination of President as Director. The Board of Directors
shall always nominate the President of the Corporation for election by the
Corporation's shareholders to the Corporation's Board of Directors whenever the
President's term as a director expires or whenever the President is not
currently a director.
Section 9. Terms; Vacancies. The directors shall be elected for the terms,
and vacancies in the Board of Directors shall be filled in the manner, specified
in Section 7.2 of the Corporation's Articles of Incorporation.
ARTICLE III
OFFICERS
Section 1. Election. The Board of Directors shall elect annually from its
own number a Chairman and Vice Chairman of the Board of Directors. No person
shall serve more than three successive one-year terms as Chairman of the Board
of Directors or Vice Chairman of the Board of Directors. The Board of Directors
shall elect a President and one or more Vice Presidents, and as the Board of
Directors may determine the business of the Corporation requires, a Controller,
a Treasurer, and a Secretary and shall elect or appoint from time to time such
other additional officers as are desirable in its opinion for the conduct of
business of the Corporation. An officer may hold more than one office, except
that the President may not serve simultaneously as the Secretary or the
Treasurer.
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Section 2. Removal. Any officer shall be subject to removal at any time by
the affirmative vote of a majority of the Board of Directors.
Section 3. Duties of Chairman. The Chairman of the Board of Directors shall
preside at all meetings of the Board of Directors and shall perform such other
duties as may be prescribed from time to time by the Board of Directors or by
these Bylaws.
Section 4. Duties of Vice Chairman. The Vice Chairman of the Board of
Directors shall perform the functions and duties of the Chairman of the Board of
Directors at any time the Chairman of the Board of Directors is unable to
perform the functions and duties of the Chairman of the Board of Directors
except where by law or by resolution the action of the Chairman of the Board of
Directors is required, and shall perform such other duties as, from time to
time, may be prescribed and directed by the Board of Directors or the Chairman
of the Board of Directors.
Section 5. Duties of President. The President shall preside at all meetings
of the shareholders; shall see that all orders and resolutions of the Board of
Directors are carried into effect; and, subject to the direction by the Board of
Directors, shall exercise general supervision over the affairs, business,
property and employees of the Corporation; and shall execute all contracts or
agreements authorized by the Board of Directors and sign certificates for shares
of the capital stock of the Corporation. At each annual meeting, the President
shall report upon the business of the Corporation. In the President's absence,
sickness, disability or the like, a Vice President of the Corporation, if any
are elected, may perform the duties of the President.
Section 6. Duties of Vice President. A Vice President shall have such
powers and perform such duties as may be assigned by the Board of Directors or
the President. In the absence or disability of the President, a Vice President
designated by the Board of Directors or by the President shall perform the
duties and exercise the powers of the President. A Vice President may sign and
execute contracts and other obligations pertaining to the regular course of the
duties of the Vice President.
Section 7. Duties of Secretary. The Secretary shall keep the minutes of all
meetings of the shareholders and of the Board of Directors, and to the extent
required or ordered by the Board of Directors or the President, the minutes of
meetings of all committees, shall cause notice to be given of meetings of
shareholders, of the Board of Directors and of any committee appointed by the
Board of Directors; shall have custody of the corporate seal and general charge
of the records, documents and papers of the Corporation not pertaining to the
performance of the duties vested in other officers, which shall at all
reasonable times be open to the examination of any director; may sign or execute
contracts with the President or a Vice President thereunto authorized in the
name of the Corporation and affix the seal of the Corporation thereto; shall
perform such other duties as may be prescribed from time to time by the Board of
Directors or by the Bylaws; and shall be sworn to the faithful discharge of the
duties of the Secretary.
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Section 8. Duties of Controller. The Controller shall be responsible to the
Board of Directors, the President and Treasurer for all financial control and
internal audit of the Corporation and its subsidiaries; shall perform such other
duties as may be assigned to him by the Board of Directors, the President and
the Treasurer; and shall be responsible to a designated Vice President only for
the routine administrative matters pertaining to the duties of the office of
Controller.
Section 9. Duties of Treasurer. The Treasurer shall have general custody of
all the funds and securities of the Corporation and have general supervision of
the collection and disbursement of funds of the Corporation; shall endorse on
behalf of the Corporation for collection the checks, notes and other obligations
of the Corporation, and shall deposit the same to the credit of the Corporation
in such bank or banks or depositories as the Board of Directors may designate;
may sign with the President, or such other person or persons as may be
designated for the purpose by the Board of Directors, all bills of exchange or
promissory notes of the Corporation; shall enter or cause to be entered
regularly in the books of the Corporation full and accurate accounts of all
monies received and paid by the Treasurer on account of the Corporation; shall
at all reasonable times exhibit books and accounts of the Corporation to any
Director upon application at the office of the Corporation during business
hours; shall, whenever required by the Board of Directors or the President,
render a statement of accounts; shall perform such other duties as may be
prescribed from time to time by the Board of Directors or by the Bylaws; and
shall give bond for the faithful performance of the duties of the Treasurer in
such sum and with such surety as shall be approved by the Board of Directors.
Section 10. Vacancies. In case any office shall become vacant, the Board of
Directors shall have the power to fill such vacancy. In case of the temporary
absence or disability of any officer, the Board of Directors may delegate the
powers or duties of any officer to another officer or a director for the
interim.
Section 11. Exercise of Rights as Shareholder. Unless otherwise ordered by
the Board of Directors, the President or a Vice President thereunto duly
authorized by the President shall have full power and authority on behalf of the
Corporation to attend and to vote at any meeting of shareholders of any
corporation in which the Corporation may hold stock, and may exercise on behalf
of the Corporation any and all rights and powers incident to the ownership of
such stock at any such meeting and shall have power and authority to execute and
deliver proxies and consents on behalf of the Corporation in connection with the
exercise by the Corporation of the rights and powers incident to the ownership
of such stock. The Board of Directors, from time to time, may confer like powers
upon any other person or persons.
Section 12. Bonds. The officers and employees of the Corporation shall give
such bonds as the Board of Directors may require.
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ARTICLE IV
RESIGNATIONS AND REMOVALS
Section 1. Officers, Agents, Employees and Members of Committees. Any
officer, agent or employee of the Corporation may resign at any time by giving
written notice to the Board of Directors or to the Chairman of the Board of
Directors or to the Secretary of the Corporation. Any member of any committee
may resign by giving written notice either as aforesaid or to the committee of
which such person is a member or to the chairman thereof. Any such resignation
shall take effect at that time specified therein, or if the time is not
specified, upon receipt thereof, and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective. The
Board of Directors may at any time, with or without cause, remove from office or
discharge or terminate the employment of any officer, agent, employee or member
of any committee.
Section 2. Directors. Any director may resign at any time by giving written
notice to the Board of Directors or to the Chairman of the Board of Directors or
to the Secretary of the Corporation. Any such resignation shall take effect at
the time specified therein, or if the time is not specified, upon receipt
thereof; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
ARTICLE V
CAPITAL STOCK AND STOCK CERTIFICATES
Section 1. Issuance. Every shareholder shall be entitled to have a
certificate certifying the number of shares thereof held of record by the
shareholder. Certificates shall be signed by the President or a Vice President
of the Corporation and the Secretary or an Assistant Secretary of the
Corporation and sealed with the seal of the Corporation.
Section 2. Transfer. No transfer of stock shall be valid against the
Corporation until it shall have been registered upon the Corporation's books in
the following manner: The person named as the shareholder in the stock
certificate, or the attorney-in-fact for such shareholder so constituted in
writing, shall surrender such stock certificate and, in writing, direct the
transfer thereof.
Section 3. Lost, Stolen or Destroyed Certificates. The Corporation shall
issue a new stock certificate in the place of any certificate previously issued
if the holder of record of the certificate (i) makes proof in affidavit form
that it has been lost, destroyed or wrongfully taken; (ii) requests the issuance
of a new certificate before the Corporation has notice that the certificate has
been acquired by a purchaser for value in good faith and without notice of any
claims; (iii) gives bond in such form as the Corporation may direct to indemnify
the Corporation, the transfer agent and the registrar against any claim that may
be made on account of the alleged loss, destruction or theft of a certificate;
and (iv) satisfies any other reasonable requirements imposed by the Board of
Directors of the Corporation. When any certificate has been lost, apparently
destroyed or wrongfully taken, if the owner of record of the certificate fails
to notify the Corporation that the certificate has been lost, destroyed, or
stolen, and if the proper officers or transfer agent of the Corporation
registers a transfer of the certificate before receiving such notification, such
prior owner of record shall be
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precluded from asserting against the Corporation, any officer of the Corporation
and the transfer agent of the Corporation, any claim for wrongful transfer of
the certificate, any claim to a new certificate or any claim for rights normally
accorded to shareholders of the Corporation.
ARTICLE VI
INDEMNIFICATION
Section 1. Action by Third Party. The Corporation shall indemnify any
person who was or is a party to any proceeding (other than an action by, or in
the right of, the Corporation), by reason of the fact that the person is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against liability incurred in connection with such proceeding, including any
appeal thereof, if the person acted in good faith and in a manner the person
reasonably believed to be in, or not opposed to, the best interests of the
Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any proceeding by judgment, order, settlement or conviction or upon a plea of
nolo contendere or its equivalent shall not, of itself, create a presumption
that the person did not act in good faith and in a manner that the person
reasonably believed to be in, or not opposed to, the best interests of the
Corporation or, with respect to any criminal action or proceeding, had
reasonable cause to believe that the conduct of the person was unlawful.
Section 2. Action by Corporation. The Corporation shall indemnify any
person, who was or is a party to any proceeding by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses and amounts paid in settlement not exceeding, in
the judgment of the Board of Directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in connection with
the defense or settlement of such proceeding, including any appeal thereof. Such
indemnification shall be authorized if such person acted in good faith and in a
manner such person reasonably believed to be in, or not opposed to, the best
interests of the Corporation, except that no indemnification shall be made under
this Section in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable unless, and only to the extent that, the
court in which such proceeding was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite the adjudication of
liability but in view of all circumstances of the case, such person is fully and
reasonably entitled to indemnity for such expenses that such court shall deem
proper.
Section 3. Successful Defense of an Action. To the extent that a director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any proceeding referred to in Section 1 or Section 2
of this Article VI, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses actually and reasonably incurred by
the person in connection therewith.
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Section 4. Procedure. Any indemnification under Section 1 or Section 2 of
this Article VI, unless pursuant to a determination by a court, shall be made by
the Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because the person has met the applicable standard of conduct
set forth in Section 1 or Section 2 of this Article VI. Such determination shall
be made:
(i) By the Board of Directors by majority vote of a quorum consisting of
directors who were not parties to such proceeding;
(ii) If such quorum is not obtainable or, even if obtainable, by majority
vote of a committee duly designated by the Board of Directors (in which
directors who are parties may participate) consisting solely of two or more
directors not at the time parties to the proceeding;
(iii) By independent legal counsel:
(1) Selected by the Board of Directors prescribed in paragraph (i) or
the committee prescribed in paragraph (ii); or
(2) If a quorum of the directors cannot be obtained for paragraph (i)
and the committee cannot be designated under paragraph (ii), selected
by majority vote of the full Board of Directors (in which directors
who are parties may participate); or
(iv) By the shareholders by a majority vote of a quorum consisting of
shareholders who were not parties to such proceeding or, if no such quorum is
obtainable, by a majority vote of shareholders who were not parties to such
proceeding.
Section 5. Reasonableness of Expenses. Evaluation of the reasonableness of
expenses and authorization of indemnification shall be made in the same manner
as the determination that indemnification is permissible. However, if the
determination of permissibility is made by independent legal counsel, persons
specified by Section 4(iii) shall evaluate the reasonableness of expenses and
may authorize indemnification.
Section 6. Expenses Paid in Advance. Expenses incurred by an officer or
director in defending a civil or criminal proceeding may be paid by the
Corporation in advance of the final disposition of such proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if such director or officer ultimately is found not to be entitled to
indemnification by the Corporation pursuant to this Article. Expenses incurred
by other employees and agents may be paid in advance upon such terms or
conditions as the Board of Directors deems appropriate.
Section 7. Willful Misconduct, Etc. The indemnification and advancement of
expenses provided pursuant to this Article are not exclusive, and the
Corporation may make any other or
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further indemnification or advancement of expenses of any of its directors,
officers, employees or agents, under any provisions of the Articles of
Incorporation, or any bylaw, agreement, vote of shareholders or disinterested
directors, or otherwise, both as to action in the person's official capacity and
as to action in another capacity while holding such office. However,
indemnification or advancement of expenses shall not be made to or on behalf of
any director, officer, employee or agent if a judgment or other final
adjudication establishes that the cause of action so adjudicated constitutes:
(i) A violation of the criminal law, unless the director, officer, employee
or agent had reasonable cause to believe the conduct was lawful or had no
reasonable cause to believe the conduct was unlawful;
(ii) A transaction from which the director, officer, employee or agent
derived an improper personal benefit;
(iii) In the case of a director, a circumstance under which the liability
provisions of Section 607.0834, Florida Statutes, are applicable; or
(iv) Willful misconduct or conscious disregard for the best interests of
the Corporation in a proceeding by or in the right of the Corporation to procure
a judgment in its favor or in a proceeding by or in the right of a shareholder.
Section 8. Persons No Longer in the Corporation's Services. Indemnification
and advancement of expenses as provided in this section shall continue, unless
otherwise provided when authorized or ratified, to a person who has ceased to be
a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person, unless otherwise provided
when authorized or ratified.
Section 9. Court Ordered Indemnification. Unless the Corporation's Articles
of Incorporation provide otherwise, notwithstanding the failure of the
Corporation to provide indemnification, and despite any contrary determination
of the Board of Directors or of the shareholders in the specific case, a
director, officer, employee or agent of the Corporation who is or was a party to
the proceeding may apply for indemnification or advancement of expenses, or both
to the court conducting the proceeding, to the circuit court, or to another
court of competent jurisdiction.
Section 10. Constituent Corporations. For purposes of this Article, the
term "Corporation" includes, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director, officer,
employee or agent of a constituent corporation, or is or was serving at the
request of a constituent corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
is in the same position under this Article with respect to the resulting or
surviving corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
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Section 11. Definitions. For purposes of this Article:
(i) The term "other enterprises" includes employee benefit plans;
(ii) The term "expenses" includes counsel fees, including those for appeal;
(iii) The term "liability" includes obligations to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with respect to any
employee benefit plan), and expenses actually and reasonably incurred with
respect to a proceeding;
(iv) The term "proceeding" includes any threatened, pending or completed
action, suit or other type of proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal;
(v) The term "agent" includes a volunteer;
(vi) The term "serving at the request of the Corporation" includes any
service as a director, officer, employee or agent of the Corporation that
imposes duties on such persons, including duties relating to an employee benefit
plan and its participants or beneficiaries; and
(vii) The term "not opposed to the best interest of the Corporation"
describes the actions of a person who acts in good faith and in a manner the
person reasonably believes to be in the best interests of the participants and
beneficiaries of an employee benefit plan.
Section 12. No Limitation. The indemnification provisions contained in
these Bylaws shall be in addition to, and shall in no manner limit,
indemnification rights contained in the Corporation's Articles of Incorporation
or applicable law or otherwise available to the persons entitled to
indemnification.
Section 13. Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any such capacity or
arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify him or her against such liability under the
provisions of this Article.
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ARTICLE VII
DIVIDENDS
Subject to applicable restrictions under Florida law, the Board of
Directors of the Corporation, from time to time, may declare and the Corporation
may pay dividends on its outstanding shares of capital stock, and such dividends
may be paid in cash, property or additional shares of the Corporation.
ARTICLE VIII
WAIVER OF NOTICE
Any officer or director may waive any notice required to be given under
these Bylaws by executing a written waiver thereof.
ARTICLE IX
AMENDMENT OF BYLAWS
The Bylaws may be changed or amended by the Board of Directors at any
regular or special meeting by a majority vote, except with respect to Bylaws
hereafter adopted by the shareholders containing an express provision that the
same may not be altered or amended by the Board of Directors.
ARTICLE X
INCONSISTENT WITH LAWS AND RULES
If any provision of these Bylaws or if these Bylaws taken as a whole,
either now or hereafter as modified or amended, are inconsistent with any law,
rule or regulation of the State of Florida or of any other governmental
authority or statute or law of the United States of America governing the
Corporation, such Bylaws or Bylaw provisions shall be deemed suspended for so
long as inconsistent with such law, rule or regulation.
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LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
50 N. LAURA STREET SUITE 2800
JACKSONVILLE, FL 32202-3650
(904) 354-8000
FACSIMILE: (904) 353-1673
February 18, 1999
FPIC Insurance Group, Inc.
1000 Riverside Avenue, Suite 800
Jacksonville, FL 32204
Ladies and Gentlemen:
We have acted as counsel to FPIC Insurance Group, Inc., a Florida
corporation (the Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") to be filed by the Company on or shortly
after the date hereof with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to
1,165,000 shares of the Company's common stock, par value $0.10 per share (the
"Common Stock"), to be issued pursuant to the Company's Omnibus Incentive Plan
(the "Plan").
In connection with this opinion, we have made such investigations and have
considered such matters of law and of fact, including the examination of
originals or copies, certified or otherwise identified to our satisfaction, of
such records and documents of the Company, certificates of officers and
representatives of the Company, certificates of public officials and such other
documents as we have deemed appropriate as a basis for the opinions hereinafter
set forth. With respect to all of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to the originals of all documents submitted to
us as copies.
Based upon the foregoing, and subject to the qualifications stated herein,
we are of the opinion that:
1. Upon issuance, delivery and payment therefor in accordance with the
terms of the Plan, the Common Stock will be legally issued, fully paid and
non-assessable.
This opinion is limited to the laws of the State of Florida and the Federal
laws of the United States.
<PAGE>
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name therein. In giving this
consent, we do not hereby admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act or the rules or
regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
EXHIBIT 23(a)
KPMG, LLP
The Board of Directors
FPIC Insurance Group, Inc.
We consent to the use of our report dated March 6, 1998 relating to the
consolidated balance sheets of FPIC Insurance Group, Inc. as of December 31,
1997 and 1996 and the related consolidated statements of income, changes in
shareholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1997 incorporated herein by reference in the
registration statement on Form S-8 of FPIC Insurance Group, Inc.'s Omnibus
Incentive Plan.
/s/ KPMG, LLP
Jacksonville, Florida
February 18, 1999
