As filed with the Securities and Exchange Commission on
August 26, 1998.
================================================================================
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 78746-6550
(Address of registrant's principal executive offices)
AMERICAN PHYSICIANS SERVICE GROUP, INC. AMENDED AND RESTATED
1995 INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN
(Full title of
the plan)
- ------------------------------------------------------------------
KENNETH S. SHIFRIN
American Physicians Service Group, Inc.
1301 Capital of Texas Highway, Suite C-300
Austin, Texas 78746-6550
(512) 328-0888
(Name, address and telephone number
of registrant's agent for service)
- -------------------------------------------------------------------------
Copies to:
TIMOTHY L. LA FREY
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1900 Frost Bank Plaza
816 Congress Avenue
Austin, Texas 78701
(512) 499-6200
- ---------------------------------------------------------------------------
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the registered securities
will thereafter be effected upon option exercises under the Plan.
- ---------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------- -------------------- --------------------- -------------------- ====================
Title of securities Proposed maximum Offering Proposed maximum Amount of
To be registered amount to be Price aggregate registration fee
registered(1) per share offering price
- ---------------------------------- -------------------- --------------------- -------------------- ====================
- ---------------------------------- -------------------- --------------------- -------------------- ====================
<S> <C> <C> <C> <C>
Common Stock, $.10 par value(1)... 400,000 $5.5625 (2) $2,225,000 (2) $656.38 (2)
- ---------------------------------- -------------------- --------------------- -------------------- ====================
</TABLE>
(1) Pursuant to Rule 416, there are also being registered such additional
shares of common stock as may become issuable pursuant to the
antidilution provisions of the Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and Rule 457(h), using the average of the
high and low sales prices reported on The Nasdaq National Market for
the Registrant's Common Stock on August 24, 1998.
<PAGE>
II-2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
American Physicians Service Group, Inc. (the "Company") has
previously filed a Registration Statement on Form S-8, Registration No.
333-07427 with the Securities and Exchange Commission (the "Commission") with
respect to the registration of securities of the same class, relative to the
same employment benefit plan, as the securities being registered pursuant to
this Registration Statement.
The Company hereby incorporates by reference into this
Registration Statement the following documents previously filed with the
Commission:
(a) The Form S-8 Registration Statement filed by the
Company on July 2, 1996 with the Commission as
Registration No. 333-07427;
(b) The Company's Annual Report on Form 10-K for the year
ended December 31, 1997;
(c) The Company's Quarterly Report on Form 10-Q for the
period ended March 31, 1998;
(d) The Company's Quarterly Report on Form 10-Q for the
period ended June 30, 1998.
(e) The description of the Company's outstanding Common
Stock contained in the Company's Form 8-A, dated
January 6, 1984, for registration of the Common Stock
pursuant to Section 12 (g) of the Exchange Act,
including any amendment or report filed for the
purpose of updating such description.
All reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in any document incorporated or deemed to be 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 herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed to constitute a part of this
Registration Statement, except as so modified or superseded.
Item 8. Exhibits
Exhibit Number Exhibit
-------------- -------------------
5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
23.1 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
(included in the Opinion filed as Exhibit 5.1 to this
Registration Statement)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (reference is made to the Signature Pages
of this Registration Statement)
99.1 American Physicians Service Group, Inc. Amended and
Restated 1995 Incentive and Non-Qualified Stock Option Plan
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Austin, State of Texas, on this 26th day of August,
1998.
AMERICAN PHYSICIANS SERVICE GROUP, INC.
By /s/ William H. Hayes
---------------------------------------
William H. Hayes, Senior Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of American Physicians
Service Group, Inc., a Texas corporation, do hereby constitute and appoint
Kenneth S. Shifrin and William H. Hayes, and each of them, the lawful
attorneys-in-fact and agents with full power and authority to do any and all
acts and things and to execute any and all instruments which said attorneys and
agents, and either one of them, determine may be necessary or advisable or
required to enable said corporation to comply with the Securities Act of 1933,
as amended, and any rules or regulations or requirements of the Securities and
Exchange Commission in connection with this Registration Statement. Without
limiting the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned officers
and directors in the capacities indicated below to this Registration Statement,
to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and each of the undersigned hereby ratifies
and confirms all that said attorneys and agents, or either of them, shall do or
cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Signature Title Date
----------- ------- --------
/s/ Kenneth S. Shifrin
- --------------------- Chairman of the Board, President
KENNETH S. SHIFRIN and Chief Executive Officer August 26, 1998
/s/ William H. Hayes
- -------------------- Senior Vice President and Chief
WILLIAM H. HAYES Financial Officer August 26, 1998
/s/ Thomas R./ Solimine
- ----------------------- Controller (Chief Accounting
THOMAS R. SOLIMINE Officer) August 26, 1998
/s/ Jack Murphy
- ---------------------- Director
JACK MURPHY August 26, 1998
/s/ Robert L. Myer
- --------------------- Director
ROBERT L. MYER August 26, 1998
II-2
<PAGE>
/s/ William A. Searles
- ---------------------- Director
WILLIAM A. SEARLES August 26, 1998
II-3
<PAGE>
INDEX TO EXHIBITS
Sequentially
Numbered
Exhibit Exhibit Page
Number
- ------- ------------------------------------------------------ -----------
5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. i
23.1 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
(included in the Opinion filed as Exhibit 5.1 to this
Registration Statement)
23.2 Consent of KPMG Peat Marwick LLP ii
24.1 Power of Attorney (reference is made to the Signature
Page of this Registration Statement)
99.1 American Physicians Service Group, Inc. Amended and iii
Restated 1995 Incentive and Non-Qualified Stock Option
Plan
EXHIBIT 5.1
i
<PAGE>
August 26, 1998
American Physicians Service Group, Inc.
1301 Capital of Texas Highway
Suite C-300
Austin, Texas 78746
Gentlemen:
We have acted as counsel to American Physicians Service Group, Inc., a
Texas corporation (the "Company"), in connection with the registration, on the
Company's Registration Statement on Form S-8 (the "Registration Statement") to
be filed under the Securities Act of 1933, as amended (the "Securities Act"), of
the offer and sale of an aggregate of 400,000 shares of common stock, par value
$.10 per share, of the Company (the "Common Stock"), as that number may be
adjusted from time to time pursuant to the provisions of the Company's Amended
and Restated 1995 Incentive and Non-Qualified Stock Option Plan, as amended (the
"Plan"), that may be issued pursuant to stock options (the "Options") granted
under the Plan.
In reaching the opinion set forth herein, this firm has reviewed such
agreements, certificates of public officials and officers of the Company,
records, documents, and matters of law that this firm deemed relevant, including
(a) the Registration Statement, (b) the Certificate of Incorporation of the
Company, (c) the Bylaws of the Company, and (d) the Plan.
Based upon and subject to the foregoing and subject further to the
assumptions, exceptions, and qualifications hereinafter stated, this firm
expresses the opinion that each share of Common Stock, when issued in accordance
with the terms of the Plan and related option agreement, will be legally issued,
fully paid, and non-assessable.
The opinion expressed above is subject to the following assumptions,
exceptions, and qualifications:
1. This firm has assumed that (i) all information contained in all
documents reviewed by this firm is true and correct, (ii) all signatures on all
documents reviewed by this firm are genuine, (iii) all documents submitted to
this firm as originals are true and complete, (iv) all documents submitted as
copies are true and complete copies of the originals thereof, (v) each natural
person signing any document reviewed by this firm had the legal capacity to do
so and (vi) each person signing in a representative capacity any document
reviewed by this firm had authority to sign in such capacity.
2. This firm has also assumed that the Company has received or will
receive the full amount and type of consideration (as specified in the Plan and
each applicable option agreement) for each of the shares of Common Stock or will
have received that consideration upon the issuance of Common Stock pursuant to
the applicable Option, that such consideration will be either cash or personal
property, that such consideration will equal or exceed the par value per
<PAGE>
share of Common Stock, that appropriate certificates evidencing such shares will
be properly executed upon such issuance, and that each grant of an Option
pursuant to the Plan will be duly authorized.
The opinions expressed above are limited to the laws of the State of
Texas.
This opinion may be filed as an exhibit to the Registration Statement.
In giving this consent, we do not thereby admit that we come into the category
of persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations of the Securities and Exchange Commission promulgated
thereunder.
Very truly yours,
AKIN, GUMP, STRAUSS, HAUER & FELD,L.L.P.
By: /s/ Timothy L. LaFrey
-------------------------------
Timothy L. LaFrey, Partner
EXHIBIT 23.2
ii
<PAGE>
INDEPENDENT AUDITORS' CONSENT
-------------------------------------------------------
The Board of Directors
American Physicians Service Group, Inc.
We consent to the use of our report incorporated herein by reference.
By: /s/ KPMG Peat Marwick, LLP
--------------------------
KPMG PEAT MARWICK LLP
Austin, Texas
August 26, 1998
EXHIBIT 99.1
iii
<PAGE>
AMENDED AND RESTATED 1995 INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN
OF
AMERICAN PHYSICIANS SERVICE GROUP, INC.
A Texas Corporation
I. Purpose of Plan
The purpose of this 1995 Incentive Stock Option Plan (this "Plan") is
to strengthen American Physicians Service Group, Inc. a Texas corporation (the
"Corporation"), and its subsidiaries, by providing stock options as a means to
attract, retain and motivate corporate personnel. On June 11, 1998, the
shareholders of the Corporation approved an amendment increasing the number of
shares of Common Stock (as defined below) which may be issued pursuant to
Options (as defined below) granted under this Plan from 800,000 to 1,200,000.
This Plan was originally adopted on June 13, 1996 and incorporates all
amendments through June 11, 1998. Such amendments reflect any revisions
automatically incorporated pursuant to the terms of the Plan which require that
the provisions of the Plan remain consistent with Rule 16b-3 (as hereinafter
defined).
II. Administration
This plan shall be administered by an administrative body (the
"Committee") designated by the Board of Directors of the Corporation (the
"Board"). The Board may designate itself as the Committee or appoint two or more
non-employee directors to a committee which shall serve as the Committee. The
Committee shall be constituted so as to permit the Plan to comply with Rule
16b-3, as currently in effect or as hereinafter modified or amended ("Rule
16b-3"), promulgated under the Securities Exchange Act of 1934, as amended (the
"1934 Act"). The Committee shall have the sole authority to select the persons
entitled to receive Options (as defined below) from among those eligible
hereunder (the "Optionees") and to establish the number of shares that may be
issued under each Option to such persons; provided, however, that,
notwithstanding any provision in this Plan to the contrary, the maximum number
of shares of common stock, $.10 par value per share of the Company (the "Common
Stock") that may be subject to Options granted under the Plan to an individual
Optionee during any calendar year may not exceed 150,000 (subject to adjustment
in the same manner as provided in Article IX hereof to prevent dilution.) The
limitation set forth in the preceding sentence shall be applied in a manner
which will permit compensation generated under the Plan to constitute
"performance-based" compensation for purposes of section 162(m) of the Internal
Revenue Code of 1986, as amended ( the "Code"), including, without limitation,
counting against such maximum number of shares, to the extent required under
section 162(m) of the Code and applicable interpretive authority thereunder, any
shares subject to Options that are canceled or repriced. The Committee shall
have the power to make all determinations necessary for the administration of
the Plan,
<PAGE>
subject to the restrictions on committee power set forth in Texas law.
III. Grant of Options
The Corporation is authorized to grant incentive stock options
("Incentive Stock Options") as defined in section 422 of the Code and options
that are not intended to be Incentive Stock Options (hereafter "Non-Qualified
Stock Options" and, together with Incentive Stock Options, the "Options"). Any
Option granted under this Plan shall be granted within 10 years form the date
this Plan is adopted, or the date this Plan is approved by the stockholders
pursuant to Article X, whichever is earlier. No option granted under this Plan
shall be exercisable by its terms after the expiration of 10 years from the
grant of the Option. Options may be granted only to individuals, (a) who are
employees (including officers and directors who are also employees) of the
Company or any parent or subsidiary corporation (as defined in section 424 of
the Code) of the Company or (b) who are non-employee directors of the Company at
the time the Option is granted and who may be granted options hereunder in
compliance with Rule 16b3. Options may be granted to the same individual on more
than one occasion.
Incentive Stock Options may not be granted to persons who own stock
possessing more than 10 percent of the total combined voting power of all
classes of stock of the Corporation, or of its parent or subsidiary, if any,
within the meaning of section 422(b)(6) of the Code, unless (i) at the time such
Option is granted the option price is at least 110% of the fair market value of
the Common Stock subject to such Option and (ii) such Option by its terms is not
exercisable after the expiration of five years from the date of the grant.
To the extent that the aggregate fair market value of Common Stock (as
determined in good faith by the Committee at the time the Incentive Stock Option
is granted), with respect to which Incentive Stock Options are exercisable for
the first time by an individual during any calendar year (under all incentive
stock option plans of the Corporation and any parent or subsidiary corporation)
exceeds $100,000, such excess Incentive Stock Options shall be treated as
Non-Qualified Stock Options. The Committee shall determine, in accordance with
applicable provisions of the Code, Treasury Regulations and other administrative
pronouncements which of an Optionee's Incentive Stock Options will not
constitute Incentive Stock Options because of such limitation and shall notify
the Optionee of such determination as soon as practicable after such
determination.
IV. Stock Subject to Plan
The aggregate number of shares of Common Stock that may be issued
pursuant to Options granted under this Plan shall not exceed 1,200,000 shares of
Common Stock (subject to adjustment as provided in article VIII). Such shares
may consist of authorized but unissued shares of Common Stock or previously
issued shares of Common stock reacquired by the Company. Any of such shares
which remain unissued and which are not subject to outstanding Options at the
termination of this Plan shall cease to be subject to this Plan, but, until
termination of this Plan, the Company shall at all times make available a
sufficient number of shares to meet
2
<PAGE>
the requirements of this Plan. Should any
Option hereunder expire or terminate prior to its exercise in full, the shares
of Common Stock theretofore subject to such Option may again be subject to an
Option granted under this Plan to the extent permitted under Rule 16b-3. The
aggregate number of shares which may be issued under this Plan shall be subject
to adjustment as provided in Article VIII hereof. Exercise of an Option in any
manner shall result in a decrease in the number of shares of Common Stock which
may thereafter be available, both for purposes of the Plan and for sale to any
one individual, by the number of shares as to which the Option is exercised.
Separate stock certificates shall be issued by the Company for those shares
acquired pursuant to the exercise of an Incentive Stock Option and for those
shares acquired pursuant to the exercise of any Non-Qualified Stock Options.
V. Option Agreements
Each Option shall be evidenced by a written agreement between the
Company and the Optionee ("Option Agreement") which shall contain such terms and
conditions as the Committee deems necessary, including, without limitation,
terms and conditions relating to the termination of Options. The terms and
conditions of the respective Option Agreements need not be identical. Moreover,
an Option Agreement may provide for the payment of the option price, in whole or
in part, by the delivery of a number of shares of Common Stock (plus cash if
necessary) having a fair market value equal to such option price.
VI. Option Price
The purchase price for a share of Common Stock subject to an Incentive
Stock Option granted pursuant to this Plan shall not be less than the fair
market value of the Common Stock subject to such Incentive Stock Option at the
time such Option is granted. The purchase price for a share of the Common Stock
subject to a Non-Qualifying Stock Option granted pursuant to this Plan shall be
not less than 100% of the fair market value of the Common Stock subject to such
Non-Qualifying Stock Option on the date such Option is granted.
For all purposes under the Plan, the fair market value of a share of
Common Stock on a particular date shall be equal to the average of the high and
low sales prices of the Common Stock (i) reported by the National Market System
of NASDAQ on that date or (ii) if the Common Stock is listed on a national stock
exchange, reported on the stock exchange composite tape on that date; or, in
either case, if no prices are reported on that date, on the last preceding date
on which such prices of the Common Stock are so reported. If the Common Stock is
traded over the counter at the time a determination of its fair market value is
required to be made hereunder, its fair market value shall be deemed to be equal
to the average between the reported high and low or closing bid and ask prices
of the Common Stock on the most recent date on which the Common Stock was
publicly traded. In the event the Common Stock is not publicly traded at the
time a determination of its value is required to be made hereunder, the
determination of its fair market value shall be made by the Committee in such
manner as it deems appropriate.
3
<PAGE>
VII. Options Nontransferable
Incentive Stock Options and all rights granted thereunder shall not be
transferable other than by will or the laws of descent and distribution.
Non-Qualified Stock Options and all rights granted thereunder shall not be
transferable other than by will or the laws or descent and distribution, or upon
the express prior written consent of the Committee in each instance. All
Incentive Stock Options shall be exercisable during the Optionee's lifetime,
only by the Optionee or the Optionee's guardian or legal representative.
VIII. Recapitalization or Reorganization
In the event of a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, an appropriate and
proportionate adjustment shall be made in the number of shares of Common Stock
for which Options may be granted pursuant to Article Iv hereof. A corresponding
change shall be made to the number and kind of shares, and the exercise price
per share, of unexercised Options.
IX. Merger, Consolidation or Dissolution of Corporation
Following the merger of one or more corporations into the Corporation,
or any consolidation of the Corporation and one or more corporations in which
the Corporation is the surviving corporation, the exercise of Options under this
Plan shall apply to the shares of the surviving corporation.
Not withstanding any other provision of this Plan, all Options under
this plan shall terminate on the dissolution or liquidation of the Corporation,
or on any merger or consolidation in which the Corporation is not the surviving
corporation.
X. Effective Date of Plan
This Plan shall be effective on approval by the affirmative vote of the
holders of a majority of the outstanding shares of capital stock of the Company
present or represented and entitled to vote thereon at a duly held shareholder
meeting or by unanimous written consent of the stockholders of the Corporation
in the manner required by Rule 16b-3.
XI. Amendment or Termination of Plan
The Board in its discretion may terminate this Plan at any time with
respect to any shares of Common Stock for which Options have not theretofore
been granted. The Board shall have the right to alter or amend this Plan or any
part hereof from time to time; provided, that no change in any Option heretofore
granted may be made which would impair the rights of the Optionee without the
consent of such Optionee; and provided, further, that (i) the Board may not make
any alteration or amendment which would decrease any authority granted to the
Committee hereunder in contravention of Rule 16b-3 and (ii) the Board may not
make any alteration or
4
<PAGE>
amendment which would materially increase the benefits
accruing to participants under the Plan, increase the aggregate number of shares
which may be issued pursuant to the provisions of the Plan, change the class of
individuals eligible to receive Options under the Plan or extend the term of the
Plan, without the approval of the Stockholders of the Company.
XII. Compliance with Section 16
With respect to persons subject to Section 16 of the 1934 Act,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the 1934 Act. To the extent any
provision of the Plan or action by the Committee fails to so comply, it shall be
deemed null and void, to the extent permitted by law and deemed advisable by the
Committee.
AMERICAN PHYSICIANS SERVICE GROUP, INC.
By: /s/ Kenneth S. Shifrin
-----------------------------------------
Kenneth S. Shifrin, Chairman of the Board,
President and Chief Executive Officer
5
