-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NEo0Lka/kG5jlkuqUoQSCp1xKHN8nhe6EOCfLP/5ZnaNAs0DwirOTApZMj/kcika ijlOEzlKhSPvcxS0oY9sWg== 0000724024-98-000010.txt : 19980827 0000724024-98-000010.hdr.sgml : 19980827 ACCESSION NUMBER: 0000724024-98-000010 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980826 EFFECTIVENESS DATE: 19980826 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN PHYSICIANS SERVICE GROUP INC CENTRAL INDEX KEY: 0000724024 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MANAGEMENT SERVICES [8741] IRS NUMBER: 751458323 STATE OF INCORPORATION: TX FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-62233 FILM NUMBER: 98697803 BUSINESS ADDRESS: STREET 1: 1301 CAPITAL OF TEXAS HWY STREET 2: C-300 CITY: AUSTIN STATE: TX ZIP: 78746 BUSINESS PHONE: 5123280888 MAIL ADDRESS: STREET 1: 1301 CAPITAL OF TEXAS HIGHWAY CITY: AUTIN STATE: TX ZIP: 78746 S-8 1 AMENDMENT TO STOCK OPTION PLAN 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
- ---------------------------------- -------------------- --------------------- -------------------- ==================== 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 - ---------------------------------- -------------------- --------------------- -------------------- ==================== - ---------------------------------- -------------------- --------------------- -------------------- ==================== Common Stock, $.10 par value(1)... 400,000 $5.5625 (2) $2,225,000 (2) $656.38 (2) - ---------------------------------- -------------------- --------------------- -------------------- ====================
(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. 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 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 /s/ William A. Searles - ---------------------- Director WILLIAM A. SEARLES August 26, 1998 II-3 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 EX-5 2 OPINION OF AKIN, GUMP, STRAUSS, HAUER & FELD, LLP EXHIBIT 5.1 i 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 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 EX-23 3 CONSENT OF KPMG PEAT MARWICK LLP EXHIBIT 23.2 ii 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 EX-99 4 AMENDMENT TO 1995 STOCK OPTION PLAN EXHIBIT 99.1 iii 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, 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 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 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 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 -----END PRIVACY-ENHANCED MESSAGE-----