-----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, SjxQs+Kpm5jj6IIdh/kkqzPDZNElQsLGKJNp4a8i96e8M8WuxA9oUyZfy9rLrg0g 1wIpG3XVWDlMhEPqcqGHdw== 0000724024-04-000002.txt : 20040330 0000724024-04-000002.hdr.sgml : 20040330 20040330135519 ACCESSION NUMBER: 0000724024-04-000002 CONFORMED SUBMISSION TYPE: 10KSB PUBLIC DOCUMENT COUNT: 10 CONFORMED PERIOD OF REPORT: 20031231 FILED AS OF DATE: 20040330 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: 10KSB SEC ACT: 1934 Act SEC FILE NUMBER: 001-31434 FILM NUMBER: 04699730 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 10KSB 1 mar28.txt ANNUAL REPORT AS OF DECEMBER 31, 2003 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-KSB --X-- Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 for the fiscal year ended December 31, 2003 ----- Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Commission File Number: 0-11453 AMERICAN PHYSICIANS SERVICE GROUP, INC. (Exact name of registrant as specified in its charter) Texas 75-1458323 (State or other jurisdiction (I.R.S. employer Identification No.) of incorporation or organization) 1301 Capital of Texas Highway, Austin Texas 78746 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (512) 328-0888 Securities registered pursuant to Section 12(b) of the Act: Name of each exchange Title of each class on which registered ------------------- --------------------- None None Securities registered pursuant to Section 12(g) of the Act: Common Stock, $0.10 par value (Title of Class) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes |X| No |_| Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-KSB or any amendment to this Form 10-KSB. |_| State the aggregate market value of the voting stock held by non-affiliates of the registrant. The aggregate market value shall be computed by reference to the price at which the stock was sold or the average bid and asked prices of such stock, as of a specified date within 60 days prior to the date of filing. Aggregate Market Value at March 10, 2004: $23,063,627 Indicate the number of shares outstanding of each of the registrant's class of common stock, as of the latest practicable date. Number of Shares Outstanding At Title of Each Class March 10, 2004 ------------------- ---------------- Common Stock, $.10 par value 2,478,667 Documents Incorporated By Reference Selected portions of the Registrant's definitive proxy material for the 2003 annual meeting of shareholders are incorporated by reference into Part III of the Form 10-KSB. TABLE OF CONTENTS PAGE PART I Item 1. Description of Business 3 Item 2. Description of Property 9 Item 3. Legal Proceedings 9 Item 4. Submission of Matters to a Vote of Security Holders 9 PART II Item 5. Market for Common Equity Related Stockholder Matters and Small Business Issuer Purchases of Equity Securities 9 Item 6. Management's Discussion and Analysis or Plan of Operation 10 Item 7. Financial Statements 19 Item 8. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure 19 Item 8A. Controls and Procedures 19 PART III Item 9. Directors, Executive Officers, Promoters and Control Persons; Compliance with Section 16(a) of the Exchange Act 19 Item 10. Executive Compensation 19 Item 11. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters 19 Item 12. Certain Relationships and Related Transactions 19 Item 13. Exhibits, Lists and Reports on Form 8-K 20 Item 14. Principal Accountant Fees and Services 23 SIGNATURES 23 EXHIBIT INDEX A-1 EX-21.1 (Subsidiaries of the Registrant) EX-23.1 (Consents of Experts and Counsel) EX-31.1 (Certification of Chief Executive Officer) EX-31.2 (Certification of Chief Financial Officer) EX-32.1 (Certification of Chief Executive Officer) EX-32.2 (Certification of Chief Financial Officer) 2 AMERICAN PHYSICIANS SERVICE GROUP, INC. ANNUAL REPORT ON FORM 10-KSB FOR THE FISCAL YEAR ENDED DECEMBER 31, 2003 References in this report to "we", "us", "our", and the "Company" mean American Physicians Service Group, Inc. PART I ITEM 1. DESCRIPTION OF BUSINESS GENERAL We, through our subsidiaries, provide services that include brokerage and investment services to individuals and institutions, and management and agency services to malpractice insurance companies. We were organized in October 1974 under the laws of the State of Texas. Our principal executive office is at 1301 Capital of Texas Highway, Suite C-300, Austin, Texas 78746, and our telephone number is (512) 328-0888. Our website is www.amph.com. We make available free of charge on our website our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and any amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 as soon as reasonably practicable after such material is electronically filed with, or furnished to, the Securities and Exchange Commission ("SEC") Financial information about our industry segments is disclosed in Note 16 to our accompanying Consolidated Financial Statements in Appendix A. OUR FINANCIAL SERVICES Through our subsidiaries, APS Financial Corporation, or APS Financial, and APS Asset Management, Inc., or Asset Management, we provide investment and investment advisory services to institutions and individuals throughout the United States. Our revenues from this segment were 64% and 59% of our total revenues in 2003 and 2002, respectively. APS Financial is a fully licensed broker/dealer that provides brokerage and investment services primarily to institutional and high net worth individual clients. APS Financial also provides portfolio accounting, analysis, and other services, to insurance companies, banks, and public funds. APS Financial has its main office in Austin, Texas with branch offices in Houston, Texas and Redmond, Washington. APS Financial charges commissions on both exchange and over-the-counter, or OTC, transactions in accordance with industry practice. When APS Financial executes OTC transactions as a dealer, it receives, in lieu of commissions, markups or markdowns. APS Financial is a member of the National Association of Securities Dealers, Inc., or NASD, the Securities Investor Protection Corporation, or SIPC, the Securities Industry Association, and, in addition, is licensed in 44 states and Washington D.C. 3 Every registered broker/dealer doing business with the public is subject to stringent rules with respect to net capital requirements promulgated by the Securities and Exchange Commission, or SEC. These rules, which are designed to measure the financial soundness and liquidity of broker/dealers, specify minimum net capital requirements. Since we (as opposed to APS Financial) are not a registered broker/dealer, we are not subject to these rules. However, APS Financial is subject to these rules. Compliance with applicable net capital requirements could limit APS Financial's operations, such as limiting or prohibiting trading activities that require the use of significant amounts of capital. A significant operating loss or an extraordinary charge against net capital could adversely affect the ability of APS Financial to expand or even maintain its present levels of business. At February 28, 2004, APS Financial was in compliance with all applicable net capital requirements. APS Financial clears its transactions through SWS Securities, Inc., or SWS, on a fully disclosed basis. SWS also processes orders and floor reports, matches trades, transmits execution reports to APS Financial and records all data pertinent to trades. APS Financial pays SWS a fee based on the number and type of transactions. Asset Management, a registered investment adviser under the Investment Advisers Act of 1940, was formed and registered with the SEC in 1998. We formed Asset Management to manage fixed income and equity assets for institutional and individual clients on a fee basis. Asset Management's mission is to provide clients with investment results within specific client-determined risk parameters. OUR INSURANCE SERVICES As of December 31, 2003, APS Insurance Services, Inc., or Insurance Services, is a wholly-owned subsidiary of ours. Prior to October 1, 2003, we owned 80% of Insurance Services. On October 1, 2003 we acquired the remaining 20% minority interest in APS Insurance Services for approximately $2.0 million in cash (see Note 14). APS Insurance Services, through its wholly-owned subsidiaries APS Facilities Management, Inc., dba APMC Insurance Services, Inc., or FMI, and American Physicians Insurance Agency, Inc., or Agency, provides management and agency services to medical malpractice insurance companies. Our revenues from this segment contributed 36% and 41% of our total revenues in 2003 and 2002, respectively. Substantially all of our revenue from this segment was attributable to FMI providing management services to American Physicians Insurance Exchange, or APIE, a reciprocal insurance exchange, wholly-owned by its subscriber physcians. A reciprocal insurance exchange is an organization that sells insurance only to its subscribers, who pay, in addition to their annual insurance premiums, a contribution to the exchange's surplus. These exchanges generally have no paid employees but instead enter into a contract with an "attorney-in-fact" that provides all management and administrative services for the exchange. As the attorney-in-fact for APIE, FMI receives a percentage of the earned premiums of APIE, as well as a portion of APIE's profits. The amount of these premiums can be adversely affected by competition. Substantial underwriting losses, which might result in a curtailment or cessation of operations by APIE, would also adversely affect FMI's revenue and, accordingly, our revenue. To limit possible underwriting losses, APIE currently reinsures its risk in excess of $250,000 per medical incident. APIE offers medical professional liability insurance for physicians in Texas and Arkansas. FMI's assets are not subject to any insurance claims by policyholders of APIE. APIE was organized in 1975, and FMI has been its exclusive manager since its inception. The management agreement between FMI and APIE basically provides for full management by FMI of the affairs of APIE under the direction of APIE's physician board of directors. Subject to the direction of this board, FMI sells and issues policies, investigates, settles and defends claims, and otherwise manages APIE's affairs. In consideration for performing its services, FMI receives a percentage fee based on APIE's earned premiums (before payment of reinsurance premiums), as well as a portion of APIE's profits. FMI pays salaries and personnel related expenses, rent and office operations costs, data processing costs and many other operating expenses of APIE. APIE is responsible for the payment of all claims, claims expenses, peer review expenses, directors' fees and expenses, legal, actuarial and auditing expenses, its taxes, outside agent commissions and certain other specific expenses. Under the management agreement, FMI's authority to act as manager of APIE is automatically renewed each year unless a majority of the subscribers to APIE elect to terminate the 4 management agreement by reason of an adjudication that FMI has been grossly negligent, has acted in bad faith or with fraudulent intent or has committed willful misfeasance in its management activities. Termination of FMI's management agreement with APIE would have a material adverse effect on us. APIE is authorized to do business in the states of Texas and Arkansas, and specializes in writing medical professional liability insurance for health care providers. It writes insurance in Texas primarily through purchasing groups and is not subject to certain rate and policy form regulations issued by the Texas Department of Insurance. It reviews applicants for insurance coverage based on the nature of their practices, prior claims records and other underwriting criteria. APIE is one of the largest medical professional liability insurance companies in the State of Texas. APIE is the only professional liability insurance company based in Texas that is wholly-owned by its subscriber physicians. Generally, medical professional liability insurance is offered on either a "claims made" basis or an "occurrence" basis. "Claims made" policies insure physicians only against claims that occur and that are reported during the period covered by the policy. "Occurrence" policies insure physicians against claims based on occurrences during the policy period regardless of when they are reported. APIE offers only a "claims made" policy in Texas and Arkansas, but provides for an extended reporting option upon termination. APIE reinsures 100% of all Texas and Arkansas coverage per medical incident between $250,000 and $1,000,000, primarily through certain domestic and international insurance companies. The following table presents selected financial and other data for APIE. The management agreement with FMI obligates APIE to pay management fees to FMI based on APIE's earned premiums before payment of reinsurance premiums. The management fee percentage is 13.5% with the provision that any profits of APIE will be shared equally with FMI so long as the total payment (fees and profit sharing) does not exceed a cap based on premium levels. In 2003, 2002, 2001, 2000, and 1999, management fees attributable to profit sharing were $722,000, $0, $0, $0, and $329,000, respectively. While APIE was profitable in 2001 and 2002 there was no profit sharing with FMI due to the management agreement requiring that prior year losses be applied against future pretax income. Only after prior year losses are completely offset can FMI then share equally the profits at APIE.
Years Ended December 31, ---------------------------------------------------------------------- 2003 2002 2001 2000 1999 (Unaudited, in thousand, except for number of insureds) Earned premiums before reinsurance premiums $ 51,904 $ 46,078 $ 35,866 $ 29,057 $ 24,529 Total assets 102,728 80,721 64,557 66,348 66,377 Total surplus 15,783 12,985 11,475 10,014 13,925 Management fees (including profit sharing) and commissions to FMI and Agency (1) 7,789 6,221 5,084 4,002 3,645 Number of insureds 3,073 3,181 3,101 3,178 2,882
(1) Includes commissions of $513, $3,103, $2,886, $1,898, and $1,191 in 2003, 2002, 2001, 2000, and 1999, respectively, from other carriers directly related to APIE's controlled business. OUR OTHER INVESTMENTs At December 31, 2003, we owned less than 5% of the outstanding common stock of Prime Medical Services, Inc., or Prime Medical, having reduced our ownership from 15% with the sale of 1,591,000 shares during 2002. Prior to that sale we recorded our pro-rata share of Prime Medical's earnings using the equity method of accounting. As a result of our reduced ownership, we now account for our investment as an available-for-sale equity security, with changes in market value, net of tax, reflected in shareholders' equity as "accumulated other 5 comprehensive income." Prime Medical is the largest provider of lithotripsy services in the United States, currently servicing over 372 hospitals and surgery centers in 26 states. Lithotripsy is a non-invasive method of treating kidney stones through the use of shock waves. Prime is also an international supplier of specialty vehicles for the transport of high technology medical, broadcast/communications and homeland security equipment. At December 31, 2003, our investments in Prime Medical Securities include common stock and fixed income securities with an aggregate fair market value of $4,313,000. A material decline in the value of this investment could have a material effect in our financial condition and results of operations. The common stock of Prime Medical is quoted on the NASDAQ National Market under the symbol "PMSI". Prime Medical is a Delaware corporation and is required to file annual, quarterly and other reports and documents with the SEC. The summary information in the accompanying consolidated financial statements regarding Prime Medical is qualified in its entirety by reference to such reports and documents. Such reports and documents may be examined and copies may be obtained from the SEC. On June 4, 2003 we purchased from Financial Industries Corporation ("FIC")(NASDAQ: FNIN) and a foundation 339,879 shares of FIC's common stock as an investment. The purchase price was approximately $5,000,000, which was sourced from our cash reserves. Earlier in 2003 we had purchased 45,121 FIC shares in the open market. The 385,000 shares represents an approximate 4% ownership in FIC. The shares purchased from FIC and the foundation are not registered, but are subject to a registration rights agreement requiring FIC's best efforts to register them within one year of the transaction. We have classified all of these shares as securities available-for-sale and have recorded changes in their value, net of tax, in our balance sheet as part of "accumulated other comprehensive income". A material decline in the value of this investment could have a material effect in our financial condition and results of operations. At December 31, 2003, the fair market value of our investment in FIC stock was $5,313,000. As part of this transaction we were granted options to purchase an additional 323,000 shares of FIC's common stock at $16.42 per share. There is a significant revenue-related performance requirement that must be met before these options are exercisable. We have assigned no value to this option. FIC is a Texas corporation and is required to file annual, quarterly and other reports and documents with the SEC. (The summary information in the accompanying consolidated financial statements regarding FIC is qualified in its entirely by reference to such reports and documents.) Such reports and documents may be obtained from the SEC. DISCONTINUED OPERATIONS Effective November 1, 2002, we completed the sale of APS Consulting to its management as we determined the division's operations were not consistent with our long-term strategic plan. We sold all of our APS Consulting shares for a de minimus amount of cash plus a $250,000 seven-year term note at the prime rate plus 3%. Our existing contract, which was entered into October 1, 2002, provides administrative support services to APS Consulting for a period of approximately seven years remainss in effect. Fees under this contract are dependent on APS Consulting's pre-tax earnings but may not be less than $200,000 or more than $518,000 over the life of the agreement. Because we were dependent upon the future successful operation of the division to collect our proceeds from the disposal and because we had a security interest in the assets of the division, we had retained a sufficient risk of loss to preclude us from recognizing the divestiture of APS Consulting under the guidance of FASB Interpretation No 46. Accordingly, we did not recognize the divestiture of APS Consulting and continued to consolidate the division as an entity in which we have a variable interest that will absorb the majority of the entity's operating losses if they occurred. Effective November 1, 2003, APS Consulting was able to obtain third party financing and repay their note payable to us in exchange for our agreeing to discount the note by $35,000. We provided no guarantees or credit enhancements in connection with APS Consulting securing this financing. Accordingly, we no 6 longer have a risk of loss related to these operations and have recognized the transaction as a divestiture. As a result, we ceased consolidation of APS Consulting financial statements effective November 1, 2003. In addition, we were able to recognize a gain of $27,000, net of tax, and administrative support fees totaling $84,000 for the period from November 1, 2002 through October 31, 2003 that had previously been eliminated as intercompany revenues. COMPETITION APS Financial and Asset Management are both engaged in a highly competitive business. Their competitors include, with respect to one or more aspects of their business, all of the member organizations of the New York Stock Exchange and other registered securities exchanges, all members of the NASD, registered investment advisors, members of the various commodity exchanges and commercial banks and thrift institutions. Many of these organizations are national rather than regional firms and have substantially greater personnel and financial resources than us. In many instances APS Financial is competing directly with these organizations. In addition, there is competition for investment funds from the real estate, insurance, banking and thrift industries. APIE competes with Medical Protective Insurance Company, Texas Medical Liability Trust, and the Texas Medical Liability Insurance Underwriting Association (JUA), which is the State sponsored insurer of last resort. APIE does not have the capacity to write the volume of business equal to that of the other major carriers. Great focus has been given to the area of underwriting and the selection of our insured physicians. With the successful passing of tort reform in late 2003, there is an increased likelihood of additional companies re-entering the Texas market. APIE anticipates maintaining its market share through a combination of unique and tailored coverages, and a continued commitment to claims, risk management and underwriting services. REGULATION APS Financial and Asset Management are subject to extensive regulation under both federal and state laws. The SEC is the federal agency charged with administration of the federal securities and investment advisor laws. Much of the regulation of broker/dealers, however, has been delegated to self-regulatory organizations, principally the NASD and the national securities exchanges. These self-regulatory organizations adopt rules (subject to approval by the SEC), which govern the industry and conduct periodic examinations of member broker/dealers. APS Financial is also subject to regulation by state and District of Columbia securities commissions. The regulations to which APS Financial is subject cover all aspects of the securities business, including sales methods, trade practices among broker/dealers, uses and safekeeping of customers' funds and securities, capital structure of securities firms, record keeping and the conduct of directors, officers and employees. Additional legislation, changes in rules promulgated by the SEC and by self-regulatory organizations, or changes in the interpretation or enforcement of existing laws and rules, may directly affect the method of operation and profitability of APS Financial and, accordingly, us. The SEC, self regulatory organizations and state securities commissions may conduct administrative proceedings which can result in censure, fine, suspension or expulsion of APS Financial, its officers or employees. The principal purpose of regulation and discipline of broker/dealers is the protection of customers and the securities markets, rather than protection of creditors and shareholders of broker/dealers. APS Financial, as a registered broker/dealer and NASD member organization, is required by federal law to belong to the SIPC. When the SIPC fund falls below a certain minimum amount, members are required to pay annual assessments in varying amounts not to exceed .5% of their adjusted gross revenues to restore the fund. The SIPC fund provides protection for customer accounts up to $500,000 per customer, with a limitation of $100,000 on claims for cash balances. FMI has received certificates of authority from the Texas and Arkansas insurance departments, licensing it on behalf of the subscribers of APIE. APIE, 7 as an insurance company, is subject to regulation by the insurance departments of the States of Texas and Arkansas. These regulations strictly limit all financial dealings of a reciprocal insurance exchange with its officers, directors, affiliates and subsidiaries, including FMI. Premium rates, advertising, solicitation of insurance, types of insurance issued and general corporate activity are also subject to regulation by various state agencies. EMPLOYEES At March 1, 2004, we employed, on a full time basis, approximately 107 persons, including 56 by Insurance Services, 42 by APS Financial and Asset Management, and 9 directly by us. We consider our employee relations to be good. None of our employees are represented by a labor union and we have experienced no work stoppages. EXECUTIVE OFFICERS As of March 15, 2004, our executive officers were as follows: Name Age Position Kenneth S. Shifrin 54 Chairman of the Board, President and Chief Executive Officer William H. Hayes 56 Senior Vice President -Finance, Secretary, Chief Financial Officer Maury L. Magids 39 Senior Vice President - Insurance Thomas R. Solimine 45 Controller Our officers serve until the next annual meeting of our directors and until their successors are elected and qualified. Mr. Shifrin has been our Chairman of the Board since March 1990. He has been our President and Chief Executive Officer since March 1989 and he was President and Chief Operating Officer from June 1987 to February 1989. He has been a director of ours since February 1987. From February 1985 until June 1987, Mr. Shifrin served as our Senior Vice President - Finance and Treasurer. Mr. Shifrin also has been a director of Financial Industries Corporation since June 2003 and Chairman of the Board of Prime Medical since October 1989. Mr. Shifrin is a member of the World Presidents Organization. Mr. Hayes has been our Senior Vice President - Finance since June 1995. Mr. Hayes was our Vice President from June 1988 to June 1995 and was our Controller from June 1985 to June 1987. He has been our Secretary since February 1987 and our Chief Financial Officer since June 1987. Mr. Hayes is a Certified Public Accountant. Mr. Magids has been our Senior Vice President - Insurance Services since June 2001 and has been President and Chief Operating Officer of FMI since November 1998. Mr. Magids joined us in October 1996. Mr. Magids is a Certified Public Accountant and was with Arthur Andersen LLP from August 1986 until September 1996, most recently as Director of Business Development. Mr. Solimine has been our Controller since June 1994. He has served as Secretary for APS Financial since February 1995. From July 1989 to June 1994, Mr. Solimine served as our Manager of Accounting. There are no family relationships, as defined, between any of our executive officers, and there is no arrangement or understanding between any of our executive officers and any other person pursuant to which he or she was selected as an officer. Each of our executive officers was elected by our board of directors to hold office until the next annual election of officers and until 8 his or her successor is elected and qualified or until his or her earlier resignation or removal. Our board of directors elects our officers in conjunction with each annual meeting of our shareholders. AVAILABLE INFORMATION We file annual, quarterly, and current reports, proxy statements, and other documents with the SEC under the Securities Exchange Act of 1934 (the "Exchange Act"). You may read and copy any materials that we file with the SEC at the SEC's public reference room at 450 Fifth Street, NW, Washington, DC 20549. The public may obtain information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. Also, the SEC maintains a website that contains these SEC filings. You can obtain these filings at the SEC's website at http://www.sec.gov. We also make available free of charge on or through our website (http://www.amph.com) our Annual Report on Form 10-KSB, Quarterly Reports on From 10-QSB, Current Reports on Form 8-K, and, if applicable, amendments to those reports filed or furnished pursuant to Section 13(a) of the Exchange Act as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. ITEM 2. DESCRIPTION OF PROPERTY We lease approximately 23,000 square feet of condominium space from Prime Medical in an office project at 1301 Capital of Texas Hwy., Suite C-300, Austin, Texas as our principal executive offices. We also lease office space for our financial services subsidiary at 2550 Gray Falls Dr, Suite 350, Houston, Texas, and 7981 168th Ave, N.E. Suite 108, Redmond, Washington. We also lease office space for our insurance services subsidiary at 5401 North Central Expressway, Suite 316, LB #B4, Dallas, Texas. ITEM 3. LEGAL PROCEEDINGS We are involved in various claims and legal actions that have arisen in the ordinary course of our business. We believe that any liabilities arising from these actions will not have a material adverse effect on our financial condition or results of operations. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS None. PART II ITEM 5. MARKET FOR COMMON EQUITY RELATED STOCKHOLDER MATTERS AND SMALL BUSINESS ISSUER PURCHASES OF EQUITY SECURITIES The following table represents the high and low prices of our common stock as reported by the Nasdaq Smallcap Market for years ended December 31, 2003 and 2002. On March 18, 2004, we had approximately 250 holders of record of our common stock. 9 2003 2002 ------------------------- --------------------- High Low High Low ----- ----- ----- ----- First Quarter $4.29 $3.51 $4.90 $2.64 Second Quarter $5.49 $3.58 $4.67 $3.49 Third Quarter $5.67 $4.51 $4.90 $3.58 Fourth Quarter $10.77 $5.10 $4.57 $3.51 We have not declared any cash dividends on our common stock during the last two years and have no present intention of paying any cash dividends in the foreseeable future. Our policy is to retain all earnings to provide funds for growth. Whether we decide to declare and pay dividends in the future will be based upon our earnings, financial condition, capital requirements and such other factors, as we may deem relevant. The following table represents securities authorized for issuance under equity compensation plans, as described in Note 11 to the consolidated financial statements at December 31, 2003. Equity Compensation Plan Information
- ------------------------------------------------------------------------------------------------------------------------------------ Plan Category Number of securities to be Weighted-average exercise Number of securities remaining issued upon exercise of price of outstanding available for future issuance under outstanding options, options, warrants equity compensation plans. warrants and rights. and rights. Excluding securities refelcted in column (a) - ------------------------------------------------------------------------------------------------------------------------------------ (a) (b) (c) - ------------------------------------------------------------------------------------------------------------------------------------ Equity Compensation plans approved by 815,000 $4.49 295,000 security holders - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ Equity compensation plans not approved by security holders none none none - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ Total 815,000 $4.49 295,000 - ------------------------------------------------------------------------------------------------------------------------------------
ITEM 6. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION Forward-Looking Statements Our statements contained in this report that are not purely historical are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, including statements regarding our expectations, hopes, intentions or strategies regarding the future. You should not place undue reliance on forward-looking statements. All forward-looking statements included in this report are based on information available to us on the date hereof, and we assume no obligation to update any such forward-looking statements. It is important to note that our actual results could differ materially from those in the forward-looking statements. In addition to any risks and uncertainties specifically identified in the text surrounding the forward-looking statements, you should consult our reports on Forms 10-QSB and our other filings under the Securities Act of 1933 and the Securities Exchange Act of 1934, for factors that could cause our actual results to differ materially from those presented. 10 The forward-looking statements included herein are necessarily based on various assumptions and estimates and are inherently subject to various risks and uncertainties, including risks and uncertainties relating to the possible invalidity of the underlying assumptions and estimates and possible changes or developments in social, economic, business, industry, market, legal and regulatory circumstances and conditions and actions taken or omitted to be taken by third parties, including customers, suppliers, business partners and competitors and legislative, judicial and other governmental authorities and officials. Assumptions relating to the foregoing involve judgments with respect to, among other things, future economic, competitive and market conditions and future business decisions, all of which are difficult or impossible to predict accurately and many of which are beyond our control. Any of these assumptions could be inaccurate and, therefore, there can be no assurance that the forward-looking statements included in this report will prove to be accurate. GENERAL We provide (1) financial services, including brokerage and investment services to individuals and institutions, and (2) insurance services, including management and agency services to medical malpractice insurance companies. Financial Services. We provide investment and investment advisory services to institutions and individuals throughout the United States through the following subsidiaries: o APS Financial. APS Financial is a fully licensed broker/dealer that provides brokerage and investment services primarily to institutional and high net worth individual clients. APS Financial also provides portfolio accounting, analysis, and other services to insurance companies, banks and public funds. We recognize commissions revenue, and the related compensation expense, on a trade date basis. o Asset Management. Asset Management manages fixed income and equity assets for institutional and individual clients on a fee basis. We recognize fee revenues monthly based on the amount of funds under management. Insurance Services. Through Insurance Services we provide management and agency services to medical malpractice insurance companies through the following subsidiary: o FMI. FMI provides management and administrative services to APIE, a regional insurance exchange that sells medical professional liability insurance only to its physician subscribers, who pay annual insurance premiums and surplus contributions to APIE. APIE is governed by a physician board of directors. Pursuant to a management agreement and the direction of this board, FMI manages and operates APIE, including performing policy issuance, claims investigation and settlement, and all other management and operational functions. As a management fee, FMI receives a percentage of APIE's earned premiums and a portion of APIE's profit, subject to a cap based on premium levels. We recognize revenues for the management fee portion based on a percentage of earned premium on a monthly basis, and we recognize revenues for the management fee portion based on profit sharing when it is reasonably certain the managed company will have an annual profit, generally in the fourth quarter. FMI's assets are not subject to APIE policyholder claims. In addition, as of December 31, 2003, we have the following significant investments accounted for as available-for-sale securities: (1) we own approximately 728,000 shares of Prime Medical common stock, representing approximately 4% of its outstanding common stock, and (2) we own 385,000 shares of Financial Industries Corporation, representing approximately 4% of its outstanding common stock. We account for these investments as available-for-sale securities, which means they are reflected on our consolidated balance sheets at fair value, and fluctuations in fair value are recognized as unrealized gains or losses excluded from earnings and reported as a separate component of stockholders' equity, net income taxes. 11 CRITICAL ACCOUNTING POLICIES AND ESTIMATES The preparation of our consolidated financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses. On an on-going basis, we evaluate our estimates, including those related to, impairment of assets; bad debts; income taxes; and contingencies and litigation. We base our estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions. We believe the following critical accounting policies and estimates affect our more significant judgments and estimates used in the preparation of our consolidated financial statements. We periodically review the carrying value of our assets to determine if events and circumstances exist indicating that assets might be impaired. If facts and circumstances support this possibility of impairment, our management will prepare undiscounted and discounted cash flow projections, which require judgments that are both subjective and complex. Management may also obtain independent valuations. Our financial services revenues are composed primarily of commissions on securities trades and asset management fees. Revenues related to securities transactions are recognized on a trade date basis. Asset management fees are recognized as a percentage of assets under management during the period based upon the terms of agreements with the applicable customers. Our insurance services revenues are primarily related to management fees based on the earned premiums of the managed company and include a profit sharing component, as defined in the management agreement, related to the managed company's annual earnings. Management fees are recorded, based upon the terms of the management agreement, in the period the related premiums are earned by the managed company. The managed company recognizes premiums as earned ratably over the terms of the related policy. The profit sharing component is recognized when it is reasonably certain the managed company will have an annual profit, and, typically, has been recognized during the fourth quarter. When necessary, we record an allowance for doubtful accounts based on specifically identified amounts that we believe to be uncollectible. If our actual collections experience changes, revisions to our allowance may be required. We have a limited number of customers with individually large amounts due at any given balance sheet date. Any unanticipated change in one of those customers' credit could have a material affect on our results of operations in the period in which such changes or events occur. After all attempts to collect a receivable have failed, the receivable is written off against the allowance. When necessary, we record a valuation allowance to reduce our deferred tax assets to the amount that is more likely than not to be realized. While we have considered future taxable income and ongoing prudent and feasible tax planning strategies in assessing the need for the valuation allowance, in the event we were to determine that we would be able to realize our deferred tax assets in the future in excess of its net recorded amount, an adjustment to the deferred tax asset would increase income in the period the determination was made. Likewise, should we determine that we would not be able to realize all or part of our net deferred tax asset in the future, an adjustment to the deferred tax asset would be charged to income in the period the determination was made. In 2002 we accounted for APS Consulting as a variable interest entity under the guidance of FIN 46 "Consolidation of Variable Interest Entities". We had not recognized the divestiture of APS Consulting and continued to consolidate the division as an entity in which we had a variable interest that would absorb the majority of the entity's operating losses should they have occurred. Accordingly, the assets and liabilities were included in our consolidated balance sheet as of December 31, 2002. 12 Effective November 1, 2003, APS Consulting paid off the negotiated remainder of the note due us, allowing us to cease accounting for them as a variable interest entity. Consequently, we have reclassified the 2002 income statement and balance sheets to reflect the disposition of APS Consulting as a discontinued operation. RESULTS OF OPERATIONS OVERVIEW AND BUSINESS OUTLOOK In 2003, we saw substantial improvement in operating income from both of our core business segments. As we look forward to 2004, there are both opportunities and impediments to continued growth. APS Financial, the broker/dealer division of our financial services segment, enjoyed a record year in both revenues and net profit in 2003. A combination of favorable bond market conditions, low personnel turnover, minimal loss of clients and minor fluctuations in non-variable operating expenses were the primary reasons for success. Matching or improving upon 2003 in 2004 will depend upon these same criteria repeating. For commission revenue generation, bullish, unstable markets provide us with the most opportunity. Conversely, stable, bearish markets pose the greatest difficulty in generating income. Uncertainty in world, political and economic events can also be an obstacle to revenue generation. Investors may take a wait and see attitude should uncertainty exist. In a year of continued battle in the Middle East, threats of terrorism on the homeland and national political elections in the fall, there could be times when investors might conserve to cash. Although we have been fortunate in retaining our key salespersons for many years, a loss of one or more key individuals and/or a loss of one or more key accounts is possible and could have a material adverse effect upon earnings. The nature of the broker/dealer business and the current litigious legal environment in which we operate means that there is always the possibility of one or more lawsuits being brought against us. Claims against broker/dealers generally rise in periods of down markets and the more prolonged a downturn, generally the greater risk of litigation. APS Insurance Services also enjoyed an excellent 2003, and looking forward to 2004, we believe could improve upon net earnings (before profit sharing) since we now own 100% of this subsidiary. In 2003, 20% of after-tax earnings of this segment was minority owned through September 30. Also, total surplus at APIE grew almost 22% in 2003 compared to 2002. If APIE's surplus continues to grow, this would continue to increase the financial strength of the company and its capacity to write new business. The insurance segment is greatly affected by the profitability of the medical malpractice insurance company that we manage. Significant increases in claims brought against our insured doctors would negatively affect the profitability of APIE, and consequently, the amount of profit, if any, we would be able to share in. This risk has been reduced by lowering the limits of liability on the physicians we insure coupled with providing policies that cap our overall exposure. Further, there was passage of tort and insurance reform in the State of Texas in 2003. The new legislation capped non-economic damages and placed restrictions on mass litigation. As a result of tort reform, we anticipate that competitors will re-enter the State of Texas, which could result in pressure to lower rates or a reduction in the number of insurance policies written by APIE. 2003 COMPARED TO 2002 Revenues from operations increased $7,372,000 (32%) compared to 2002. Our net income from continuing operations decreased $384,000 (12%) to $2,772,000 in 2003 from $3,156,000 in 2002. Our net earnings decreased $612,000 (18%) in 2003 to a total of $2,799,000 compared to net earnings of 3,411,000 in 2002. Our diluted earnings per share decreased to $1.14 in 2003 compared to $1.45 in 2002. The reasons for these changes are described below. 13 FINANCIAL SERVICES Our financial services revenues increased $6,000,000 (44%) in 2003 compared to 2002. The increase was due to strong commission revenues at APS Financial, the broker/dealer division of our financial services segment. APS Financial derives most of its revenue from trading in the fixed income market, both in investment and non-investment securities. While revenue from investment grade transactions has increased, revenue derived from the high yield market has been particularly strong, as that sector performed particularly well throughout 2003, as evidenced by various high yield indices rising as much as 29% compared to 2002. Also, we continue to have very low turnover in personnel, which gives us a better probability of maintaining our customer accounts. Our financial services expense increased $4,708,000 (40%) in 2003 compared to 2002. The primary reason for the current year increases is a $3,808,000 (50%) increase in commission expense resulting from the increase in commission revenue at APS Financial mentioned above. In addition, net profits before management incentive costs increased at APS Financial by $2,053,000 (79%) resulting in a $762,000 (88%) increase in the current year formula driven management incentive costs. Payroll related benefit costs were up $144,000 (25%) in 2003 as a result of a 27% increase in health insurance costs as well as higher payroll taxes as a result of much higher earnings by commissioned brokers. Partially offsetting these increases were relatively minor current year decreases in ticket charges, information services, depreciation and advertising costs. INSURANCE SERVICES Our insurance services revenues from our premium-based insurance management segment, APS Insurance Services, increased $1,372,000 (15%) in 2003 compared to 2002. The primary reason for the current year increase is that we recognized profit sharing with APIE this year for the first time since 1999. The total amount of profit sharing recognized in 2003 was $722,000, all of which was recognized during the fourth quarter of 2003, after profit sharing goals were attained. As the certainty of profits at APIE cannot be fully known until an end-of-year actuarial analysis by independent actuaries, we cannot predict what, if any, profits will be available to us until this analysis is complete. Further contributing to the 2003 increase in revenues was a $644,000 (10%) increase in management fees resulting from greater insurance premium volumes. The increase in 2003 premiums was primarily the result of rate increases throughout 2002 and 2003. Insurance services expenses at the insurance management subsidiary increased $775,000 (11%) in 2003 compared to 2002. The current year increase is primarily due to a $309,000 (13%) increase in payroll expense, a $81,000 (15%) increase in management incentive expense, a $73,000 (32%) increase in employee benefits, and a $130,000 (143%) increase in advertising. The current year increase in payroll is due primarily to the result of an industry salary analysis conducted in the latter half of 2002, which resulted in wages within certain departments increasing to competitive levels in order to retain personnel. In addition, two high-level management positions were added in 2003 to expand our business development and to meet growing financial reporting requirements. The increase in management incentive cost was the result of an increase in segment operating profits. As was the case with our investment services segment, employee benefit costs rose in the current year as a result of an increase in health insurance costs. Lastly, advertising costs were higher in 2003 as a result of re-branding efforts of the business. GENERAL AND ADMINISTRATIVE EXPENSES General and administrative expenses increased $117,000 (6%) in 2003 compared to 2002. Management incentive expense was $37,000 (6%) higher in 2003 on substantially higher operating income in the current year. Legal fees were $143,000 higher in 2003 primarily as a result of fees incurred in connection with our investment in Financial Industries. Insurance expense was $45,000 (90%) higher in 2003 on increased directors' and officers' liability insurance premiums. Audit fees were $37,000 (40%) higher in 2003 as a result of new SEC 14 and accounting regulations implemented during the year. Partially offsetting these increases was a decrease in other professional fees ($48,000) as outside consulting fees were incurred in 2002 to ascertain the value of a certain investment. GAIN ON SALE OF ASSETS Gain on sale of assets primarily represents the recognition of deferred income. Approximately $760,000 of the $5,100,000 deferred gain on the sale of real estate to Prime Medical in 2001 was due to our ownership interest in Prime and is recognized upon the reduction of our ownership percentage in Prime Medical through the sale of its stock. In 2002, as a result of selling 1,570,000 shares of Prime Medical common stock, we recognized a proportionate percentage of the deferred gain, or about $515,000. During 2003, we sold 24,000 shares of Prime Medical common stock and recognized a gain of $8,000. GAIN ON SALE OF INVESTMENTS Gain on the sale of investments decreased $2,728,000 (96%) in 2003 compared to 2002. The current year decline was due to the sale of significantly less shares of Prime Medical common stock in 2003 compared to 2002. In 2002, we recorded gains on the sales of 1,570,000 shares compared to 24,000 shares sold in 2003. Gains resulting from sales of Prime common stock were $64,000 and $2,855,000 in 2003 and 2002, respectively. As a result of these sales, as of December 31, 2003, we own approximately 728,000 shares of Prime Medical amounting to an ownership percentage of approximately 4%. In addition to the sale of Prime Medical shares we sold a number of fixed income securities in 2003, which resulted in gains comprising the majority of the remaining income reported. AFFILIATES EARNINGS (LOSS) Our equity in the earnings of Prime Medical was zero in 2003 as we no longer account for our investment in Prime Medical using the equity method of accounting, as was the case in the first quarter of 2002 when we recorded $186,000 in equity earnings. As of March 19, 2002, we ceased accounting for our investment in Prime Medical using the equity method of accounting because (1) on January 1, 2002, Kenneth S. Shifrin, the Company's Chairman and CEO, stepped down from day-to-day operations as Executive Chairman of the Board of Prime Medical, but continues to serve as non-executive Chairman; and (2) from January to March 19, 2002, we sold 1,570,000 shares of Prime Medical reducing our ownership percentage to approximately 5%. Our equity in earnings of Uncommon Care increased to $260,000 in 2003 compared to a loss of $230,000 in 2002. Because our total investment and advances to Uncommon Care has been reduced to zero we suspended recording equity losses, as required under the equity method. In 2002, we advanced them $230,000 and recorded a loss for the full amount of the advance. In 2003, after informing management that no further advances would be made to the Company, we recorded equity in earnings of unconsolidated affiliates in the amount of $260,000 related to cash received from Uncommon Care. We expect no further receipts of cash from Uncommon Care and consequently expect to record no additional income in the future. INTEREST INCOME Our interest income decreased $68,000 (18%) in 2003 compared to 2002 primarily as a result of a higher balance of interest-bearing securities held in 2002. In June 2003, we liquidated approximately $4.0 million in interest-bearing securities in order to secure the funds required to invest in 385,000 shares of Financial Industries common stock. 15 OTHER LOSS Our other loss decreased $120,000 (76%) in 2003 compared to 2002. The primary reason for the current year decrease in loss was the result of management fees received in 2003 from our former consulting division, which totaled $98,000. MINORITY INTERESTS Minority interests represents the combination of two outside interests in subsidiaries of the Company: a twenty percent interest in Insurance Services owned by FPIC Insurance Group, Inc. and a three percent interest in APS Asset Management, a subsidiary of the financial services subsidiary of the Company (APS Investment Services), owned by key individuals within APS Asset Management. Minority interests decreased in the current year due to the repurchase of the 20% minority interest in Insurance Services from the minority interest holder, FPIC Insurance Group effective October 1, 2003. Consequently, only nine months of minority interest was recorded in 2003 compared to a full year in 2002. DISCONTINUED OPERATIONS Effective November 1, 2003 APS Consulting paid off the negotiated remaining amount of the note payable to us. Even though we had sold this segment to APS Consulting's management exactly one year earlier, we continued to consolidate their revenues, expenses and balance sheet items as we were dependent upon future successful operations of the division to collect our proceeds from the disposal and we did not transfer risk of loss to discontinue reporting them on our consolidated financial statements. With the payoff of the note we recognized the divesture and now report APS Consulting as a discontinued operation. Accordingly, 2002 has been reclassed to remove revenues and expenses from our consolidated statements of operations and after-tax results of this former division are now recorded as income from discontinued operations in 2002. For 2003, only the after-tax gain on disposal of the segment is recorded as earnings from APS Consulting. LIQUIDITY AND CAPITAL RESOURCES WORKING CAPITAL Our net working capital was $8,537,000 and $5,799,000 at December 31, 2003 and 2002, respectively. The increase in the current year was due primarily to the following factors: (1) the sale of our stock in Uncommon Care, Inc. allowed us to write off for tax purposes a total loss in the investment of $6.7 million, resulting in an increase in our federal income tax receivable of approximately $2.3 million in 2003; (2) management fees receivable from APIE were much higher in 2003 as a result of profit sharing of approximately $722,000 compared to zero in 2002. This amount was received from APIE in March, 2004; and (3) cash received from operations. Partially offsetting these increases to working capital in 2003 was an increase in accrued compensation and other current accrued liabilities totaling approximately $1.2 million. The primary reason for this increase was higher incentive compensation accruals resulting from formula-driven, earnings based calculations arising due to much higher earnings from operations. Historically, we have maintained a strong working capital position and, as a result, we have been able to satisfy our operational and capital expenditure requirements with cash generated from our operating and investing activities. These same sources of funds have also allowed us to pursue investment and expansion opportunities consistent with our growth plans. Although there can be no assurance our operating activities will provide positive cash flow in 2004, we are optimistic that our working capital requirements will be met for the foreseeable future for the following reasons: (1) our current cash position is very strong, with a balance of approximately $9.0 million comprising 34 percent of our total assets; (2) our investments in available-for-sale equity and fixed income securities could provide an additional $9.6 million should the need arise, although at December 31, 2003, a liquidation of these investments would have caused a loss of $371,000 to be realized; (3) we expect federal income tax refunds during the first half of 2003 to be around $700,000 with approximate additional refunds during the second half of 2003 totaling $1 million; and (4) we established a line of credit in November 2003 that is described below. 16 LINE OF CREDIT During November 2003, we established a $3.0 million line of credit with PlainsCapital Bank. The loan calls for interest payments only to be made on any amount drawn until April 15, 2004, when the entire amount of the note, principal and interest then remaining unpaid, shall be due and payable. We expect to renew this line of credit for a period of one year following the April 15, 2004 maturity date. At December 31, 2003, there were no draws taken against this line of credit. We are in compliance with the covenants of the loan agreement, including requirements for a minimum of $5.0 million of unencumbered liquidity and a minimum 2 to 1 debt to worth ratio, and expect to remain in compliance at the time of renewal. CAPITAL EXPENDITURES Our capital expenditures for equipment were $223,000 and $139,000 in 2003 and 2002, respectively. Our capital expenditures were higher in 2003 due to purchases necessary to upgrade our network server hardware and software as well as to leasehold improvements at our corporate office. We expect capital expenditures in 2004 to be approximately $325,000, including $200,000 in improvements to our reporting software. Our 2004 capital expenditure budget is expected to be funded through cash on hand. COMMITMENTS There were no participation agreements or purchase commitments at December 31, 2003. We have committed cash outflow related to operating lease arrangements with a term exceeding one year and other contractual obligations at December 31, 2003 as follows (in thousands): Payment Due
Contractual Cash Obligation 2004 2005 2006 2007 2008 Total - --------------------------- ------- ------- ------- ------- -------- ------- Operating Leases $964 $810 $510 $8 $0 $2,292
MARGIN LOANS We extend credit to our customers, which is financed through our clearing organization, SWS Securities, Inc. or SWS, to help facilitate customer securities transactions. This credit, which earns interest income, is known as "margin lending". In margin transactions, the client pays a portion of the purchase price of securities, and we make a loan (financed by our clearing organization) to the client for the balance, collateralized by the securities purchased or by other securities owned by the client. In permitting clients to purchase on margin, we are subject to the risk of a market decline, which could reduce the value of our collateral below the client's indebtedness. Agreements with margin account clients permit our clearing organization to liquidate our clients' securities with or without prior notice in the event of an insufficient amount of margin collateral. Despite those agreements, our clearing organization may be unable to liquidate clients' securities for various reasons including the fact that the pledged securities may not be actively traded, there is an undue concentration of certain securities pledged, or a trading halt is issued with regard to pledged securities. As of December 31, 2003, the total of all customer securities pledges on debit balances held in margin accounts was approximately $3.3 million. We are also exposed should SWS be unable to fulfill its obligations for securities transactions. 17 Our ability to make scheduled payments or to fund planned capital expenditures will depend on our future performance, which, to a certain extent, is subject to general economic, financial, competitive, legislative, regulatory and other factors that are beyond our control. There can be no assurance that our business will generate cash flow from operations or that we will realize anticipated revenue growth and operating improvements sufficient to make scheduled payments and fund planned future capital expenditures. INFLATION Our operations are not significantly affected by inflation because, having no manufacturing operations, we are not required to make large investments in fixed assets. However, the rate of inflation will affect certain of our expenses, such as employee compensation and benefits. IMPACT OF NEW ACCOUNTING STANDARDS As more fully described in Note 1 of Notes to Consolidated Financial Statements, on January 1, 2004, we are required to adopt several new accounting standards. For a discussion of the impact of those new accounting standards upon us, see Note 1 (n). QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK We have exposure to changes in interest rates and the market values of our investments but have no material exposure to fluctuations in foreign currency. INTEREST RATE RISK Our exposure to market risk for changes in interest rates relates to both our investment portfolio and our revenues generated through commissions at our financial services segment. All of our marketable fixed income securities are designated as available-for-sale and, accordingly, are presented at fair value on our balance sheets. Fixed rate securities may have their fair market value adversely affected due to a rise in interest rates, and we may suffer losses in principal if forced to sell securities that have declined in market value due to changes in interest rates. Changes in interest rates could have an impact at our broker/dealer subsidiary, APS Financial. The general level of interest rates may trend higher or lower in 2004, and this move may impact our level of business in different fixed-income sectors. If a generally improving economy is the impetus behind higher rates, then while our investment grade business may drop off, our high yield business might improve with improving credit conditions. A volatile interest rate environment in 2004 could also impact our business as this type of market condition can lead to investor uncertainty and their corresponding willingness to commit funds. As we currently have no debt and don't anticipate the need to take on any debt in 2004, interest rate changes will have no impact on our financial position as it pertains to interest expense. INVESTMENT RISK As of December 31, 2003, our recorded basis in debt and equity securities was approximately $10.2 million. We regularly review the carrying value of our investments and identify and record losses when events and circumstances indicate that such declines in the fair value of such assets below our accounting basis are other-than-temporary. During 2003 and 2002, we recorded no impairment losses. The fair values of our investments are subject to significant fluctuations due to volatility of the stock market and changes in general economic conditions. Based on the fair value of the publicly-traded equity securities we held at December 31, 2003 of $9.6 million, an assumed 15%, 30%, and 50% adverse change to market prices of these securities would result in a corresponding decline in total fair value of approximately $1.4 million, $2.9 18 million and $4.8 million, respectively. As these investments are held as available-for-sale, these declines would be treated as unrealized holding losses on our balance sheet unless it was determined the market declines were other-than-temporary, in which case these declines would be recognized in the period the determination was made. ITEM 7. FINANCIAL STATEMENTS The information required by this item is contained in Appendix A attached hereto. ITEM 8. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE None. ITEM 8A. CONTROLS AND PROCEDURES At December 31, 2003, under the supervision and with the participation of our management, including our Chief Executive Officer (our principal executive officer) and our Chief Financial Officer (our principal financial officer), we evaluated the effectiveness of our disclosure controls and procedures (as defined under Rule 13a-15(e) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) as of the end of the period covered by this report. Based on this evaluation, our Chief Executive Officer and our Chief Financial Officer concluded that, as of December 31, 2003, our disclosure controls and procedures are effective. There have been no changes in our internal control over financial reporting that occurred during the period covered by this report that have materially affected, or are reasonably likely to materially affect, such internal control over financial reporting. PART III ITEM 9. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT The information required by this item will be contained in our definitive proxy statement to be filed in connection with our 2004 annual meeting of shareholders, except for the information regarding our executive officers, which is presented in Part I. The information required by this item contained in our definitive proxy statement is incorporated herein by reference. ITEM 10. EXECUTIVE COMPENSATION The information required by this item will be contained in our definitive proxy statement to be filed in connection with our 2004 annual meeting of shareholders, which information is incorporated herein by reference. ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS The information required by this item will be contained in our definitive proxy statement to be filed in connection with our 2004 annual meeting of shareholders, which information is incorporated herein by reference. ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS The information required by this item will be contained in our definitive proxy statement to be filed in connection with our 2004 annual meeting of shareholders, which information is incorporated herein by reference. 19 PART IV ITEM 13. EXHIBITS, LISTS, AND REPORTS ON FORM 8-K (a) 1. Financial Statements The information required by this item is contained in Appendix A attached hereto. (b) Reports on Form 8-K for the quarter ended December 31, 2002 (none) (c) Exhibits (1) 3.1 Restated Articles of Incorporation of the Company, as amended. (5) 3.2 Amended and Restated Bylaws of the Company. (5) 4.1 Specimen of Common Stock Certificate. (2) 4.2 Rights Agreement, dated as of August 15, 2000, between American Physicians Service Group, Inc. and American Stock Transfer & Trust Company, which includes the form of Statement of Resolutions setting forth the terms of the Junior Participating Preferred Stock, Series A, the form of Rights Certificate as Exhibit B and the Summary of Rights to Purchase Preferred Shares as Exhibit C. (10) *10.1 1995 Incentive and Non-Qualified Stock Option Plan of American Physicians Service Group, Inc. (6) *10.2 Form of Stock Option Agreement (ISO). (6) *10.3 Form of Stock Option Agreement (Non-Qualified). (6) 10.4 Management Agreement of Attorney-in-Fact, dated August 13, 1975, between FMI and American Physicians Insurance Exchange. (2) *10.5 Profit Sharing Plan and Trust, effective December 1, 1984, of the Company. (3) *10.6 First Amendment to 1995 Incentive and Non-Qualified Stock Option Plan of American Physicians Service Group, Inc. Dated December 10, 1997. *10.7 First Amendment to 1995 Non-Employee Director Stock Option Plan of American Physicians Service Group, Inc. Dated December 10, 1997. (8) 10.8 Contribution and Stock Purchase Agreement dated January 1, 1998 between the Company, Additional Purchasers, Barton Acquisition, Inc., Barton House, Ltd., Barton House at Oakwell Farms, Ltd., Uncommon Care, Inc., George R. Bouchard, John Trevey and Uncommon Partners, Ltd. (9) 10.9 Stock Transfer Restriction and Shareholders Agreement dated January 1, 1998 between the Company, Additional Purchasers, Barton Acquisition, Inc., Barton House, Ltd., Barton House at Oakwell Farms, Ltd., Uncommon Care, Inc., George R. Bouchard, John Trevey, and Uncommon Partners, Ltd. (9) 10.10 Loan Agreement dated January 1, 1998 between the Company and Barton Acquisition, Inc. (9) 10.11 Promissory Note (Line of Credit) dated January 1, 1998 between the Company and Barton Acquisition, Inc. in the amount of $2,400,000.(9) 20 10.12 Security Agreement dated January 1, 1998 between the Company and Barton Acquisition, Inc. (9) 10.13 Participation Agreement dated March 16, 1998 between the Company and Additional Purchasers referred to as Participants. (9) 10.14 Loan Agreement dated June 16, 1999 between APS Consulting, Inc. and APSC, Inc. (10) 10.15 Promissory Note dated June 16, 1999 between APS Consulting, Inc. and APSC, Inc. (10) 10.16 Security Agreement dated June 16, 1999 between APS Consulting, Inc. and APSC, Inc. (10) 10.17 Subordination Agreement dated June 16, 1999 between the Company and APSC, Inc. (10) 10.18 Convertible Promissory Note dated April 27, 1999 between the Company and Uncommon Care, Inc. (10) 10.19 Replacement Convertible Promissory Note dated September 30, 1999 between the Company and Uncommon Care, Inc. (10) 10.20 Liquidity Promissory Note dated September 30, 1999 between the Company and Uncommon Care, Inc. (10) 10.21 Replacement Liquidity Note dated October 15, 1999 between the Company and Uncommon Care, Inc. (10) 10.22 Management Services Agreement dated January 1, 2000 between the Company and APS Consulting. (11) 10.23 Tax Sharing Agreement dated January 1, 2000 between the Company and APS Consulting. (11) 10.24 $1.25 million Promissory Note dated June 1, 2000 between the Company and Uncommon Care, Inc. (11) 10.25 $1.20 million Promissory Note dated June 1, 2000 between the Company and Uncommon Care, Inc. (11) 10.26 Agreement dated November 22, 2002 transferring and assigning all capital stock of Eco-Systems from the Company to the purchaser. (12) *10.27 Amended 1995 Incentive and Non-Qualified Stock Option Plan (12) *10.28 Executive Employment Agreement between the Company and Kenneth S. Shifrin. (12) *10.29 Consulting Agreement between the Company and William A. Searles (12) *10.30 Executive Employment Agreement between the Company and William H. Hayes. (12) 10.31 Stock Purchase Agreement dated October 31, 2003 between the Company and FPIC Insurance Group, Inc. (13) 10.32 Revolving Promissory Note dated November 12, 2003 between the Company and PlainsCapital Bank. (13) 10.33 Loan Agreement dated November 12, 2003 between the Company and PlainsCapital Bank. (13) 21.1 List of subsidiaries of the Company. (13) 23.1 Independent Auditors Consent of BDO Seidman, LLP. (13) 31.1 Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. (13) 31.2 Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. (13) 32.1 Certification of Chief Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. (13) 32.2 Certification of Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. (13) 21 (*) Executive Compensation plans and arrangements. - ----------------- (1) The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended, and, in accordance therewith, files reports, proxy statements and other information with the Commission. Reports, proxy statements and other information filed by the Company can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices at Seven World Trade Center, 13th Floor, New York, New York 10048 and CitiCorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can be obtained by mail from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. Such reports, proxy statements and other information concerning the Company are also available for inspection at the offices of The NASDAQ National Market, Reports Section, and 1735 K STREET, N.W., WASHINGTON, D.C. 20006. The Commission maintains a Web site that contains reports, proxy and information statements and other information regarding registrants that file electronically with the Commission at http://www.sec.gov and makes available the same documents through Disclosure, Inc. at 800-638-8241. (2) Filed as an Exhibit to the Registration Statement on Form S-1, Registration No. 2-85321, of the Company, and incorporated herein by reference. (3) Filed as an Exhibit to the Annual Report on Form 10-K of the Company for the year ended December 31, 1984 and incorporated herein by reference. (4) Filed as an Exhibit to the Current Report on Form 8-K of the Company dated September 5, 1989 and incorporated herein by reference. (5) Filed as an Exhibit to the Annual Report on Form 10-K of the Company for the year ended December 31, 1990 and incorporated herein by reference. (6) Filed as an Exhibit to the Annual Report on Form 10-KSB of the Company for the year ended December 31, 1995 and incorporated herein by reference. (7) Filed as an Exhibit to the Annual Report on Form 10-KSB of the Company for the year ended December 31, 1996 and incorporated herein by reference. (8) Filed as an Exhibit to the Annual Report on Form 10-K of the Company for the year ended December 31, 1997 and incorporated herein by reference. (9) Filed as an Exhibit to the Annual Report on Form 10-K of the Company for the year ended December 31, 1998 and incorporated herein by reference. (10) Filed as an Exhibit to the Annual Report on Form 10-K of the Company for the year ended December 31, 1999 and incorporated herein by reference. (11) Filed as an Exhibit to the Annual Report on Form 10-K of the Company for the year ended December 31, 2000 and incorporated herein by reference. (12) Filed as an Exhibit to the Annual Report on Form 10-K of the Company for the year ended December 31, 2002 and incorporated herein by reference. (13) Filed herewith 22 ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES The information required by this item will be contained in our definitive proxy statement to be filed in connection with our 2004 annual meeting of shareholders, which information is incorporated herein by reference. SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. AMERICAN PHYSICIANS SERVICE GROUP, INC. By: /s/ Kenneth S. Shifrin ------------------------------------------------------- Kenneth S. Shifrin, Chairman of the Board and Chief Executive Officer Date: March 30, 2004 Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated. By: /s/ Kenneth S. Shifrin ------------------------------------------------------ Kenneth S. Shifrin Chairman of the Board and Chief Executive Officer (Principal Executive Officer) Date: March 30, 2004 By: /s/ W. H. Hayes ------------------------------------------------------ W. H. Hayes Senior Vice President - Finance, Secretary and Chief Financial Officer (Principal Financial Officer) Date: March 30, 2004 23 By: /s/ Thomas R. Solimine ------------------------------------------------------ Thomas R. Solimine Controller (Principal Accounting Officer) Date: March 30, 2004 By: /s/ Jackie Majors Jackie Majors, Director Date: March 30, 2004 By: /s/ Robert L. Myer ---------------------------------------------------------- Robert L. Myer, Director Date: March 30, 2004 By: /s/ William A. Searles ------------------------------------------------------ William A. Searles, Director Date: March 30, 2004 By: /s/ Cheryl Williams Cheryl Williams, Director Date: March 30, 2004 24 APPENDIX A INDEX TO CONSOLIDATED FINANCIAL STATEMENTS Page Independent Auditors' Report A-2 Consolidated Financial Statements Consolidated Statements of Operations for the Years ended December 31, 2003 and 2002 A-3 Consolidated Balance Sheets as of December 31, 2003 and December 31, 2002 A-5 Consolidated Statements of Cash Flows for the Years ended December 31, 2003 and 2002 A-7 Consolidated Statements of Shareholders' Equity and Comprehensive Income (Loss) for the Years ended December 31, 2003 and 2002 A-8 Notes to Consolidated Financial Statements A-9 A-1 Independent Auditors' Report The Board of Directors and Shareholders American Physicians Service Group, Inc. Austin, Texas We have audited the accompanying consolidated balance sheets of American Physicians Service Group, Inc. (the Company) as of December 31, 2003 and 2002, and the related consolidated statements of operations, shareholders' equity and comprehensive income (loss), and cash flows for each of the two years in the period ended December 31, 2003. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of American Physicians Service Group, Inc. at December 31, 2003 and 2002, and the results of its operations and its cash flows for each of the two years in the period ended December 31, 2003 in conformity with accounting principles generally accepted in the United States of America. Houston, Texas March 21, 2004 BDO Seidman ---------------------- /s/ BDO Seidman, LLP A-2 AMERICAN PHYSICIANS SERVICE GROUP, INC. CONSOLIDATED STATEMENTS OF OPERATIONS (In thousands, except per share data) Item 1 - Financial Statements
Year Ended December 31, -------------------------------- 2003 2002 ------------ -------------- Revenues: Financial services $19,623 $13,623 Insurance services 10,826 9,454 ------------ -------------- Total revenues 30,449 23,077 Expenses: Financial services 16,584 11,876 Insurance services 7,841 7,066 General and administrative 2,069 1,951 Gain on sale of assets (8) (515) ------------ -------------- Total expenses 26,486 20,378 ------------ -------------- Operating income 3,963 2,699 Gain on sale of investments (Note 5) 127 2,855 ------------ -------------- Income from continuing operations before interest, income taxes, minority interests and equity in loss of unconsolidated affiliates 4,090 5,554 Interest income 304 372 Other loss (38) (158) Interest expense 7 24 Income tax expense (Note 10) 1,640 2,283 Minority interests 197 261 Equity in earnings (loss) of unconsolidated affiliates (Note 15) 260 (44) ----------- ------------- Income from continuing operations 2,772 3,156 Discontinued operations: (Note 13) Income from discontinued operations, net of income tax expense of $132 in 2002 -- 255 Gain on disposal of discontinued segment net of income tax expense of $14 in 2003 27 -- ------------ -------------- Net income $ 2,799 $ 3,411 ============ ==============
See accompanying summary of accounting policies and notes to financial statements. A-3 AMERICAN PHYSICIANS SERVICE GROUP, INC. CONSOLIDATED STATEMENTS OF OPERATIONS, continued (In thousands, except per share amounts) Year Ended December 31, ----------------------------------- 2003 2002 ------------- ----------- Net income per common share Basic: Income from continuing operations $ 1.26 $ 1.42 Discontinued operations 0.01 0.11 ----------- ---------- Net income $ 1.27 $ 1.53 =========== ========== Diluted: Income from continuing operations $ 1.13 $ 1.35 Discontinued operations 0.01 0.11 ----------- ---------- Net income $ 1.14 $ 1.45 =========== ========== Basic weighted average shares outstanding 2,207 2,227 ========= ======== Diluted weighted average shares outstanding 2,449 2,345 ========= ======== See accompanying summary of accounting policies and notes to financial statements. A-4 AMERICAN PHYSICIANS SERVICE GROUP, INC. CONSOLIDATED BALANCE SHEETS (In thousands)
December 31, ------------------------------------------- 2003 2002 --------------- ---------------- ASSETS Current Assets: Cash and cash equivalents $8,989 $6,344 Trading account securities 67 133 Notes receivable (Note 3) 16 571 Management fees and other receivables (Note 2) 1,079 814 Deposit with clearing organization 500 500 Receivable from clearing organization 67 70 Investment in available-for-sale fixed income securities -- 1,015 Net deferred income taxes (Note 10) 532 -- Income tax receivable 1,678 491 Prepaid expenses and other current assets 565 651 ---------- ---------- Total current assets 13,493 10,589 Notes receivable, less current portion (Note 3) 436 374 Property and equipment, net (Note 6) 378 329 Investment in available-for-sale equity securities (Note 5) 8,729 6,996 Investment in available for sale fixed income securities (Note 5) 897 3,273 Goodwill (Note 15) 1,257 -- Net deferred income taxes (Note 10) -- 2,399 Other assets 448 198 Assets of discontinued operations -- 823 --------- ---------- Total Assets $25,638 $24,981 ========= ==========
See accompanying summary of accounting policies and notes to financial statements. A-5 AMERICAN PHYSICIANS SERVICE GROUP, INC. CONSOLIDATED BALANCE SHEETS, continued (In thousands, except share data)
December 31, --------------------------------------- 2003 2002 -------------- --------------- LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Accounts payable - trade $201 $293 Payable to clearing broker 67 70 Accrued incentive compensation 2,716 1,804 Accrued expenses and other liabilities (Note 7) 1,485 1,162 Deferred gain (Note 9) 487 487 Deferred income tax liability (Note 10) -- 974 --------- --------- Total current liabilities 4,956 4,790 Payable under loan participation agreements 259 259 Deferred income tax liability (Note 10) 146 -- Deferred gain (Note 9) 1,171 1,813 Liabilities of discontinued operations -- 593 --------- --------- Total liabilities 6,532 7,455 Minority interests -- 384 Shareholders' Equity: Preferred stock, $1.00 par value, 1,000,000 shares authorized, none issued or outstanding -- -- Common stock, $0.10 par value, shares authorized 20,000,000; 2,454,667 and 2,133,843 issued and outstanding at 12/31/03 and 12/31/02, respectively 245 213 Additional paid-in capital 6,918 5,584 Retained earnings 12,314 9,515 Accumulated other comprehensive income (loss), net of taxes (371) 1,830 --------- ---------- Total shareholders' equity 19,106 17,142 --------- ---------- Total Liabilities and Shareholders' Equity $25,638 $24,981 ========= ==========
See accompanying summary of accounting policies and notes to financial statements. A-6 AMERICAN PHYSICIANS SERVICE GROUP, INC. CONSOLIDATED STATEMENTS OF CASHFLOWS (In thousands)
Year Ended December 31 -------------------------------------- 2003 2002 -------------- -------------- Cash flows from operating activities: Net Income $ 2,799 $ 3,411 Adjustments to reconcile net income to cash used in operating activities: Depreciation and amortization 206 188 Forgiveness of debt and other 164 164 Minority interest in consolidated earnings 197 261 Undistributed (gain) loss of affiliates (260) 44 Gain on sale of assets (469) (1,003) Gain on sale of investment (127) (2,855) Provision for bad debt (58) 200 Changes in operating assets and liabilities: Trade receivables (325) 16 Trading account securities 66 16 Income tax receivable (996) (324) Deferred income tax 2,511 (486) Receivable from clearing organization -- (186) Management fees & other receivables (316) (279) Prepaid expenses & other assets 207 474 Deferred income (122) (85) Trade accounts payable (138) 227 Accrued expenses & other liabilities 1,266 (85) --------- --------- Net cash received in operating activities 4,605 (302) Cash flows from investing activities: Capital expenditures (319) (154) Proceeds from the sale of available-for-sale equity and fixed income securities 4,118 10,719 Purchase of available-for-sale equity securities (5,697) (4,683) Purchase of minority interest (2,050) -- Receipts from (advances to) affiliate 175 (230) Funds loaned to others (155) (155) Collection of notes receivable 745 725 --------- --------- Net cash (used in) provided by investing activities (3,183) 6,222 Cash flows from financing activities: Payment of long term debt -- (2,275) Exercise of stock options 1,351 45 Purchase and cancellation of treasury stock (285) (850) Distribution to minority interest (190) -- --------- --------- Net cash received from (used in) financing activities 876 (3,080) Net change in cash and cash equivalents $ 2,298 $ 2,840 Cash and cash equivalents at beginning of period 6,691 3,851 --------- --------- Cash and cash equivalents at end of period $ 8,989 $ 6,691 ========= =========
See accompanying summary of accounting policies and notes to financial statements. A-7 AMERICAN PHYSICIANS SERVICE GROUP, INC. CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY AND COMPREHENSIVE INCOME (LOSS) (In thousands)
Accumulated Additional Other Total Common Paid-In Retained Comprehensive Comprehensive Treasury Shareholders' Stock Capital Earnings Income Income (loss) Stock Equity ------------------------------------------------------------------------------------------------ Balance December 31, 2001 $ 275 $ 5,539 $ 8,310 $ (39) $ (1,418) $ 12,667 Comprehensive income: Net income -- -- 3,411 3,411 -- -- 3,411 Other comprehensive income: Unrealized gain on securities, net of taxes of $1,843 -- -- -- 1,869 1,869 -- 1,869 Comprehensive income -- -- -- 5,280 -- -- -- Treasury stock purchase -- -- -- -- -- (850) (850) Retired treasury stock (62) -- (2,206) -- -- 2,268 -- Stock options exercised -- 45 -- -- -- -- 45 Stock options expensed -- -- -- -- -- -- -- ------------------------------------------------------------------------------------------------ Balance December 31, 2002 $213 $5,584 $9,515 $ -- $1,830 $ -- $17,142 ------------------------------------------------------------------------------------------------ Comprehensive income: Net income -- -- 2,799 2,799 -- -- 2,799 Other comprehensive income: Unrealized loss on securities, net of taxes of $1,134 -- -- -- (2,201) (2,201) -- (2,201) ------- Comprehensive income -- -- -- 598 -- -- -- ======= Treasury stock purchases -- -- -- -- -- (284) (284) Tax benefit from exercise of stock options -- 300 -- -- -- -- 300 Retired treasury stock (6) (279) -- -- -- 284 -- Stock options exercised 38 1,313 -- -- -- -- 1,351 ------------------------------------------------------------------------------------------------ Balance December 31, 2003 $245 $6,918 $12,314 $ -- ($371) $ -- $19,106 ================================================================================================
See accompanying summary of accounting policies and notes to financial statements. A-8 AMERICAN PHYSICIANS SERVICE GROUP, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS December 31, 2003 and 2002 (1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (a) GENERAL We, through our subsidiaries, provide financial services that include brokerage and asset management services to individuals and institutions, and insurance services that consist of management services for a malpractice insurance company. The financial services business has clients nationally. Insurance management is a service provided primarily in Texas, but is available to clients nationally. During the two years presented in the financial statements, financial services generated 64% and 59% of total revenues and insurance services generated 36% and 41% in 2003 and 2002, respectively. (b) MANAGEMENT'S ESTIMATES AND ASSUMPTIONS The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. (c) PRINCIPLES OF CONSOLIDATION The consolidated financial statements include our accounts and the accounts of our subsidiary companies more than 50% owned. Investments in affiliated companies and other entities, in which our investment is less than 50% of the common shares outstanding and where we exert significant influence over operating and financial policies, are accounted for using the equity method. Investments in other entities in which our investment is less than 20%, and in which we do not have the ability to exercise significant influence over operating and financial policies, are accounted for using the cost method. We own 100% of our insurance services segment after repurchasing the 20% formerly owned by Florida Physicians Insurance Group, Inc. ("FPIC"), on September 30, 2003 (see Note 14). Before this date, we recorded minority interest to reflect the 20% of its net income or loss attributable to the minority shareholder. All significant intercompany transactions and balances have been eliminated from the accompanying consolidated financial statements. (d) REVENUE RECOGNITION Our investment services revenues related to securities transactions are recognized on a trade date basis. Asset management revenues are recognized monthly based on the amount of funds under management. Our insurance services revenues related to management fees are recognized monthly as a percentage of the earned insurance premiums of the managed company. The profit sharing component of the management services agreement is recognized when it is reasonably certain that the managed company will have an annual profit, generally in the fourth quarter of each year. A-9 (1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, continued (e) MARKETABLE SECURITIES Our investments in debt and equity securities are classified in three categories and accounted for as follows: Classification Accounting --------------- ----------- Held-to-maturity Amortized cost Trading securities Fair value, unrealized gains and losses included in earnings Available-for-sale Fair value, unrealized gains and losses excluded from earnings and reported as a separate component of stockholders' equity, net of applicable income taxes. Realized gains and losses are included in earnings. We have included our marketable securities, held as inventory at our broker/dealer, in the trading securities category. We have included investments in marketable securities not held as inventory at our broker/dealer in the available-for-sale securities category. (f) PROPERTY AND EQUIPMENT Property and equipment is stated at cost net of accumulated depreciation. Property and equipment is depreciated using the straight-line method over the estimated useful lives of the respective assets (3 to 5 years). Leasehold improvements are depreciated using the straight-line method over the life of the lease or their expected useful life, whichever is shorter. (g) LONG-LIVED ASSETS Long-lived assets, principally property and equipment, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount may not be recoverable. If the sum of the expected future undiscounted cash flows is less than the carrying amount of the asset, a loss is recognized if there is a difference between the fair value and carrying value of the asset. Management's analysis of our long-lived assets at December 31, 2003 and 2002 indicated that there was no impairment to these assets' carrying values. Investments are evaluated for impairment in the event of a material change in the underlying business. Such evaluation takes into consideration our intent and time frame to hold or to dispose of the investment and takes into consideration available information, including recent transactions in the stock, expected changes in the operations or cash flows of the investee, or a combination of these and other factors. Management's evaluation of our investments resulted in no impairment to these investments. A-10 (1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, continued (h) GOODWILL AND OTHER INTANGIBLE ASSETS Goodwill represents the excess of cost over the fair value of net assets acquired. We account for goodwill and other intangible assets according to the Statement of Financial Accounting Standards ("SFAS") No. 142, "Goodwill and Other Intangible Assets", which addresses financial accounting and reporting matters for business combinations. Under the provision of SFAS No. 142, goodwill is not amortized, but is evaluated annually for impairment or more frequently if circumstances indicate that impairment may exist. The goodwill valuation is largely influenced by projected future cash flows and, therefore, is significantly impacted by estimates and judgments. We amortize other identifiable intangible assets on a straight-line basis over the periods expected to be benefited. The components of these other intangible assets, recorded in Other Assets in the accompanying consolidated balance sheets, consist primarily of a non-compete agreement. (i) ALLOWANCE FOR DOUBTFUL ACCOUNTS When applicable, we record an allowance for doubtful accounts based on specifically identified amounts that we believe to be uncollectible. If our actual collections experience changes, revisions to our allowance may be required. We have a limited number of customers with individually large amounts due at any given balance sheet date. Any unanticipated change in one of those customers' credit could have a material affect on our results of operations in the period in which such changes or events occur. After all attempts to collect a receivable have failed, the receivable is written off against the allowance. (j) INCOME TAXES Income taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. A valuation allowance is provided for deferred tax assets to the extent realization is not judged to be more likely than not. (k) CASH AND CASH EQUIVALENTS Cash and cash equivalents include cash and highly liquid investments with a maturity date at purchase of 90 days or less. We deposit our cash and cash equivalents with high credit quality institutions. Periodically such balances may exceed applicable FDIC insurance limits. Management has assessed the financial condition of these institutions and believes the possibility of credit loss is minimal. (l) NOTES RECEIVABLE Notes receivable are recorded at cost, less allowances for doubtful accounts when deemed necessary. Management, considering current information and events regarding the borrowers ability to repay their obligations, considers a note to be impaired when it is probable that we will be unable to collect all A-11 (1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, continued amounts due according to the contractual terms of the note agreement. When a loan is considered to be impaired, the amount of the impairment is measured based on the present value of expected future cash flows discounted at the note's effective interest rate. Impairment losses are included in the allowance for doubtful accounts through a charge to bad debt expense. The present value of the impaired loan will change with the passage of time and may change because of revised estimates of cash flows or timing of cash flows. Such value changes are reported as bad debt expense in the same manner in which impairment initially was recognized. No interest income is accrued on impaired loans. Cash receipts on impaired loans are recorded as reductions of the principal amount. (m) STOCK-BASED COMPENSATION We have adopted the disclosure-only provisions of Statement of Financial Accounting Standards No. 123, Accounting for Stock-Based Compensation ("Statement 123"), but apply Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees, in accounting for our stock option plans. In 2003 we purchased 15,000 unexpired options from a grantee and in 2002 we purchased 89,000 unexpired options from four grantees. These purchases in effect modified the terms of the options and, accordingly, we recognized $34,000 and $156,000 of compensation expense in 2003 and 2002 respectively. No other compensation expense from stock-based compensation awards was recognized in 2003 and 2002. If we had elected to recognize compensation expense for options granted based on their fair values at the grant dates, consistent with Statement 123, net income and earnings per share would have changed to the pro forma amounts indicated below: Year Ended December 31, ---------------------------- 2003 2002 ----------- ---------- Net income, as reported $ 2,799,000 $3,411,000 Deduct: Total stock-based employee compensation expense determined under the fair value based method for all awards, net of related tax effects (241,000) (222,000) ------------ ----------- Pro forma net income $ 2,558,000 $3,189,000 ============ =========== Net income per share Basic - as reported $1.27 $1.53 Basic - pro forma $1.16 $1.43 Diluted - as reported $1.14 $1.45 Diluted - pro forma $1.04 $1.36 (n) RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS In April 2002, the FASB issued SFAS No. 145, Rescission of FASB Statements No. 4, 44 and 64, Amendment of FASB Statement No.13, and Technical Corrections. SFAS No. 145 amends existing guidance on reporting gains and losses on the extinguishment of debt to prohibit the classification of the gain or loss as extraordinary, as the use of such extinguishments have become part of the risk management strategy of many companies. SFAS No. 145 also amends SFAS No. 13 to require sale-leaseback A-12 (1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, continued accounting for certain lease modifications that have economic effects similar to sale-leaseback transactions. The provisions of the Statement related to the rescission of Statement No. 4 is applied in fiscal years beginning after May 15, 2002. Earlier application of these provisions is encouraged. The provisions of the Statement related to Statement No. 13 were effective for transactions occurring after May 15, 2002, with early application encouraged. We adopted No. 145 on January 1, 2003. The adoption of this statement did not have a material effect on our consolidated financial statements. In December 2002, the FASB issued SFAS No. 148, Accounting for Stock-Based Compensation - Transition and Disclosure, an amendment of FASB Statement No. 123. This Statement amends FASB Statement No. 123, Accounting for Stock-Based Compensation, to provide alternative methods of transition for a voluntary change to the fair value method of accounting for stock-based employee compensation. In addition, this Statement amends the disclosure requirements of Statement No. 123 to require prominent disclosures in both annual and interim financial statements. Certain of the disclosure modifications are required for fiscal years ending after December 15, 2002 and are included in the notes to these consolidated financial statements. We have not elected to adopt the provisions of this Statement. In May 2003, the FASB issued SFAS No. 149, "Amendment of Statement 133 on Derivative Instruments and Hedging Activities. "SFAS No. 149 amends and clarifies financial accounting and reporting for derivative instruments, including certain derivative instruments embedded in other contracts and for hedging activities under FASB Statement No. 133, "Accounting for Derivative Instruments and Hedg3eing Activities". SFAS No. 149 is generally effective for contracts entered into or modified after June 30, 2003, and for hedging relationships designated after June 30, 2003. We do not engage in hedging activities and, accordingly, the adoption of this Statement did not have an impact on our financial statements. In May 2003, the FASB issued SFAS No. 150 "Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity". SFAS No. 150 establishes standards for how an issuer measures certain financial instruments with characteristics of both liabilities and equity and requires that an issuer classify a financial instrument within its scope as a liability (or Asset in some circumstances). SFAS No. 150 was effective for financial instruments entered into or modified after May 31, 2003 and otherwise was effective and adopted by the Company on July 1, 2003. As we have no such instruments, the adoption of the Statement did not have an impact on our financial condition or results of operations. In January 2003, the FASB issued Interpretation No. 46, Consolidation of Variable Interest Entities, an interpretation of ARB No. 51. This Interpretation addresses the consolidation by business enterprises of variable interest entities as defined in the Interpretation. The Interpretation applies immediately to a variable interests in variable interest entities created after January 31, 2003, and to variable interests in variable interest entities obtained after January 31, 2003. We voluntarily elected early adoption of Interpretation No. 46. The effect of the application of this Interpretation is described in Note 13 to these consolidated financial statements. (o) RECLASSIFICATION Certain reclassifications have been made to amounts presented in 2002 to be consistent with the 2003 presentation. A-13 (2) MANAGEMENT FEES AND OTHER RECEIVABLES Management fees and other receivables consist of the following: December 31, ---------------------------- 2003 2002 ------ ------ Management fees receivable $ 739,000 $ 382,000 Accrued interest receivable 22,000 91,000 Other receivables 318,000 341,000 ---------- --------- $1,079,000 $ 814,000 ========== ========= We earn management fees by providing management services to American Physicians Insurance Exchange ("APIE") under the direction of APIE's Board of Directors. APIE is a reciprocal insurance exchange, which is wholly-owned by its subscriber physicians. Subject to the direction of APIE's Board, and subject to a management services agreement, FMI sells and issues medical insurance policies, investigates, settles and defends claims, and otherwise manages APIE's affairs. The management agreement with FMI obligates APIE to pay management fees to FMI based on a percentage of APIE's earned premiums before payment of reinsurance premiums. In addition, the management agreement provides that any profits, as defined, of APIE will be shared equally with FMI so long as the total payment (fees and profit sharing) does not exceed a cap based on premium levels. Management fees attributable to profit sharing were $722,000 and $0 for the year ended December 31, 2003 and 2002. We earned total management fees and other related income of $10,826,000 and $9,455,000, including expense reimbursements, principally for our independent agents' commissions, of $3,373,000 and $3,368,000 for the years ended December 31, 2003 and 2002, respectively, related to these agreements. The summarized financial information for APIE as of and for the year ended December 31, 2003 and 2002 is as follows: 2003 2002 (unaudited) ------------ ----------- Invested assets $86,547,000 $67,293,000 Other assets 16,181,000 13,428,000 ------------ ----------- Total Assets $102,728,000 $80,721,000 ============ =========== Current liabilities $86,945,000 $67,736,000 Surplus 15,783,000 12,985,000 ------------ ----------- Total liablilities and surplus $102,728,000 $80,721,000 ============ =========== Total revenue $56,006,000 $41,078,000 Net income $ 1,299,000 $ 1,503,000 A-14 (2) MANAGEMENT FEES AND OTHER RECEIVABLES, continued Other receivables in 2003 are primarily from our brokerage and investment advisory services and are principally comprised of commissions earned by our brokers for trades in the last week of December 2003 and 2002. (3) NOTES RECEIVABLE Notes receivable consist of the following:
December 31, 2003 2002 ---- ---- FemPartners, Inc. (Formerly due from Syntera HealthCare Corporation) Promissory note, bears interest at 8%. Payments were interest only, paid quarterly through November 30, 2001. Quarterly combined principal and interest payments began December 1, 2001 and were to continue through September 1, 2004, at which time the total outstanding balance was due. In December 2003 we agreed to extend the maturity one year interest only at 8%. The remaining principal and interest payments are due March 1, June 1, and September 1, 2005. The maturity date of this note can be accelerated if FemPartners conducts an initial public offering or other public sale of its common stock. If such occurs, the note shall mature and become due and payable on the 5th business day after the date of such initial public offering or other public sale. $420,000 $902,000 Unsecured term note, principal and interest, at 8%, payable monthly until maturity on March 31, 2004. Paid in full during 2003. - 0 - 63,000 EMPLOYEES Loans are periodically made to non-officer employees, primarily as employment retention inducements. Employee notes receivable at December 31, 2003 consisted of a note totaling $6,000, which is being amortized through December 15, 2005, provided the employee remains with us, and two loans totaling $26,000 to a key employee for advanced education fees. The latter two notes are forgivable in the amount of approximately $13,000 on each January 1st that the employee is employed by the Company beginning in 2001 and continuing through 2005. They are due within 90 days should the employee terminate employment. Employee notes receivable at December 31, 2002 consisted of a note totaling $4,000 which is being amortized through 2004, provided the employee remains with us and two loans totaling $40,000 to a key employee for advanced education fees. The same terms apply as described above. 32,000 44,000 ------ ------ 452,000 1,009,000 Less current portion and allowance for doubtful accounts of $64,000 in 2002 (16,000) (635,000) -------- ----------- Long term portion $436,000 $374,000 ======== ========
A-15 (4) FAIR VALUE OF FINANCIAL INSTRUMENTS For financial instruments the estimated fair value equals the carrying value as presented in the consolidated balance sheets. Fair value estimates, methods, and assumptions are set forth below for our financial instruments. CASH AND CASH EQUIVALENTS The carrying amounts for cash and cash equivalents approximate fair value because they mature in less than 90 days and do not present unanticipated credit concerns. TRADING ACCOUNT SECURITIES The trading account securities owned are reported at fair value. In the absence of any available market quotation, securities held by us are valued at estimated fair value as determined by management. AVAILABLE-FOR-SALE SECURITIES Available-for-sale securities owned are reported at fair value, based upon quoted market prices. ACCOUNTS RECEIVABLE The fair value of these receivables approximates the carrying value due to their short-term nature and historical collectibility MANAGEMENT FEES AND OTHER RECEIVABLES The fair value of these receivables approximates the carrying value due to their short-term nature and historical collectibility. NOTES RECEIVABLE The fair value of notes has been determined using discounted cash flows based on our management's estimate of current interest rates for notes of similar credit quality. The carrying value of notes receivable approximates their fair value. DEPOSIT WITH CLEARING ORGANIZATION The carrying amounts approximate fair value because the funds can be withdrawn on demand and there is no unanticipated credit concern. ACCOUNTS PAYABLE The fair value of the payable approximates carrying value due to the short-term nature of the obligation. LIMITATIONS Fair value estimates are made at a specific point in time, based on relevant market information and information about the financial instrument. Fair value estimates are based on existing financial instruments A-16 (4) FAIR VALUE OF FINANCIAL INSTRUMENTS, continued without attempting to estimate the value of anticipated future business and the value of assets and liabilities that are not considered financial instruments. In addition, the tax ramifications related to the realization of the unrealized gains and losses can have a significant effect on fair value estimates and have not been considered in the aforementioned estimates. (5) MARKETABLE SECURITIES The following table summarizes by major security type the cost, fair market value, and unrealized gains and losses of the investments that we have classified as available-for-sale:
Gross Gross Unrealized Unrealized Cost Gains Losses Fair Value ----------------------------------------------------------------------------- December 31, 2003 Corporate obligations $ 884,000 $ 13,000 $ -- $ 897,000 Equity securities 9,306,000 -- (577,000) 8,729,000 ----------- -------- --------- --------- Total $10,190,000 $ 13,000 $(577,000) $9,626,000 =========== ======== ========= ========== December 31, 2002 U.S. government agencies $ 2,846,000 $ 60,000 $ -- $2,906,000 Corporate obligations 1,379,000 19,000 (16,000) 1,382,000 Equity securities 4,287,000 2,762,000 (53,000) 6,996,000 --------- --------- -------- ----------- Total $8,512,000 $2,841,000 $ (69,000) $11,284,000 ========= ========= ======== ===========
Maturities of fixed income securities were as follows at December 31, 2003: Cost Fair Value ----------- -------------- Due within one year -- -- Due after one year 884,000 897,000 --------- --------- Total $ 884,000 $ 897,000 ========= ========= Amounts reflected in the tables above include equity securities of Prime Medical Services, Inc. ("Prime Medical") with a fair value of $3,416,000 and $6,525,000 and corporate obligations of Prime Medical with a fair value of $897,000 and $860,000 at December 31, 2003 and 2002, respectively. At December 31, A-17 (5) MARKETABLE SECURITIES, continued 2003, amounts also include equity securities of Financial Industries Corporation ("FIC") with a fair value of $5,313,000. As of December 31, 2003, management believes the gross unrealized loss to represent temporary declines in the investments' fair values and, accordingly, no impairment charges have been recognized. Prime Medical is the largest provider of lithotripsy (a non-invasive method of treating kidney stones) services in the United States and is an international supplier of specialty vehicles for the transport of high technology medical, broadcast/communications and homeland security equipment. Through selling of shares since our initial investment of 3,540,000 shares in 1989, our holdings of common stock at December 31, 2003 stood at 728,400, or approximately 4% of the common stock outstanding. We account for FIC as an available-for-sale equity security and record changes in their value, net of tax, in our balance sheet as part of "accumulated other comprehensive income". In June 2003 we purchased 385,000 shares of FIC for approximately $5,000,000, which was sourced from our cash reserves. These shares represent approximately 4% of the outstanding shares of FIC. We account for FIC as an available-for-sale equity security and record changes in their value, net of tax, in our balance sheet as part of "accumulated other comprehensive income". The following table summarizes our recognized gains and losses on investments. Costs on assets sold were determined on the basis of specific identification. Year ended December 31, ------------------------------------------- 2003 2002 Proceeds from sales $ 4,080,000 $ 10,731,000 Gains 197,000 2,855,000 Losses (70,000) -- ---------- ----------- Net gains $ 127,000 $ 2,855,000 ========== =========== (6) PROPERTY AND EQUIPMENT Property and equipment consists of the following: December 31, ----------------------------------- 2003 2002 ------- -------- Equipment $1,059,000 $1,022,000 Furniture 624,000 578,000 Software 323,000 319,000 Leasehold improvements 332,000 240,000 ----------- ----------- $2,338,000 $2,159,000 Accumulated depreciation and amortization $(1,960,000) $(1,830,000) ----------- ----------- $ 378,000 $ 329,000 =========== =========== A-18 (7) ACCRUED EXPENSES AND OTHER LIABILITIES Accrued expenses and other liabilities consists of the following as of December 31: 2003 2002 --------- --------- Commissions payable $ 964,000 $ 798,000 Taxes payable 116,000 93,000 401(k) plan matching 121,000 -- Vacation payable 158,000 144,000 Other 126,000 127,000 ----------- ----------- $1,485,000 $1,162,000 =========== =========== (8) DEFERRED GAIN In November 2001 we sold all of the remaining 46,000 square feet of condominium space we owned in an office project located in Austin, Texas to our former affiliate, Prime Medical. In conjunction with the sale we leased back approximately 23,000 square feet that housed our operations prior to the sale. Gain on the sale amounted to approximately $5.1 million, of which $1.9 million was recognized in 2001 and the balance of gain was deferred. Deferred income of approximately $2.4 million related to our continuing involvement in 50% of the useable space was recorded and is being recognized monthly over the five-year lease term through November 2006. Income recognition related to this deferral was $488,000 in 2003 and 2002. In addition, 15% of the gain ($0.76 million) related to our then 15% ownership in the purchaser was deferred as we accounted for Prime Medical using the equity method of accounting through the year ended December 31, 2001. During 2003 and 2002 we reduced our investment in Prime Medical and subsequently recognized a proportionate percentage of the deferred gain, amounting to $8,000 in 2003 and $515,000 in 2002. Recognition of the deferred gain is recorded as a reduction of rent expense in operating expenses in the accompanying financial statements. (9) COMMITMENTS AND CONTINGENCIES Expenses under all operating leases for the years ended December 31, 2003 and 2002 were $997,000 and $1,077,000, respectively. Future minimum payments for leases that extend for more than one year through 2008 were $964,000; $810,000; $510,000; $8,000 and $0 for 2004, 2005, 2006, 2007 and 2008, respectively. We are involved in various claims and legal actions that have arisen in the ordinary course of business. Management believes that any liabilities arising from these actions will not have a significant adverse effect on our consolidated financial condition or results of operations. A-19 (10) INCOME TAXES Income tax expense consists of the following: Year Ended December 31, ----------------------------------- 2003 2002 ------ ------- Continuing Operations Federal Current $ (978,000) $2,339,000 Deferred 2,511,000 (151,000) State-Current 107,000 95,000 ---------- ----------- Total from Continuing Operations 1,640,000 2,283,000 Discontinued Operations 14,000 -- ---------- --------- $1,654,000 $2,283,000 ========== ========= A reconciliation of expected income tax expense computed by applying the United States federal statutory income tax rate of 34% to earnings from continuing operations before income taxes to tax expense from continuing operations in the accompanying consolidated statements of operations follows: Year Ended December 31, ---------------------------- 2003 2002 ------- ------- Expected federal income tax expense from continuing operations $1,500,000 $1,849,000 State taxes 72,000 63,000 Goodwill adjustment -- 214,000 Minority interest 67,000 89,000 Other, net 1,000 68,000 --------- ---------- $1,640,000 $2,283,000 ========= ========= A-20 (10) INCOME TAXES, CONTINUED The tax effect of temporary differences that gives rise to significant portions of deferred tax assets and deferred tax liabilities at December 31, 2003 and 2002 are presented below:
Year Ended December 31, ------------------------------------------- 2003 2002 -------- --------- Deferred tax assets: Market value allowance on investments $ 191,000 $ -- Accrued expenses 357,000 101,000 Allowance for doubtful accounts 6,000 68,000 Investment in available-for-sale securities and equity investees -- 1,444,000 Other investments 126,000 51,000 Sales/Leaseback deferred income 564,000 732,000 Other 54,000 3,000 -------- --------- Total gross deferred tax assets $1,298,000 $2,399,000 Deferred tax liabilities: Investment in available-for-sale securities (889,000) -- Market value allowance on investments -- (943,000) Capitalized expenses, principally due to deductibility for tax purposes (23,000) (31,000) ---------- ---------- Total gross deferred tax liabilities (912,000) (974,000) ---------- ---------- Net deferred tax asset $ 386,000 $1,425,000 ========== ==========
In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred tax liabilities, projected future taxable income, and tax planning strategies in making this assessment. Based upon the level of historical taxable income and projections for future taxable income over the periods that the deferred tax assets are deductible, management believes it is more likely than not that we will realize the benefits of these deductible differences at December 31, 2003. (11) EMPLOYEE BENEFIT PLANS We have an employee benefit plan qualifying under Section 401(k) of the Internal Revenue Code for all eligible employees. Employees become eligible upon meeting certain service and age requirements. Employee deferrals may not exceed $12,000 in 2003 unless participant is over age 50, in which case the maximum deferral is $14,000. We may, at our discretion, contribute up to 200% of the employees' deferred amount. For the years ended December 31, 2003 and 2002 our contributions aggregated $176,000 and $135,000 respectively. A-21 (12) STOCK OPTIONS We have adopted, with shareholder approval, the "1995 Non-Employee Directors Stock Option Plan" ("Directors Plan") and the "1995 Incentive and Non-Qualified Stock Option Plan" ("Incentive Plan"). The Directors Plan provides for the issuance of up to 200,000 shares of common stock to non-employee directors who serve on the Compensation Committee. The Directors Plan is inactive and it is assumed the remaining 170,000 shares will not be granted. The Incentive Plan, as amended with shareholder approval in 1998, 2001, and 2002 provides for the issuance of up to 1,600,000 shares of common stock to our directors and key employees. A total of 1,305,000 of these options have been granted as of December 31, 2003. The exercise price for each non-qualified option share is determined by the Compensation Committee of the Board of Directors ("the Committee"). The exercise price of a qualified incentive stock option has to be at least 100% of the fair market value of such shares on the date of grant of the option. Under the Plans, option grants are limited to a maximum of ten-year terms; however, the Committee has issued all currently outstanding grants with five-year terms. The Committee also determines vesting for each option grant and substantially all outstanding options vest in two or three approximately equal annual installments beginning one year from the date of grant. The fair value of the options is estimated under Statement 123 using the Black Scholes option-pricing model with the following assumptions: 2003 2002 --------- -------- Risk-free interest rate 2.44% 3.40% Expected holding period 3.8 years 3.7 years Expected volatility .407 .477 Expected dividend yield -0- -0- Presented below is a summary of the stock options held by our employees and our directors and the related transactions for the years ended December 31, 2003 and 2002.
Year Ended December 31, --------------------------------------------------------------- 2003 2002 ---------------------------- ---------------------------- Weighted Weighted Average Average Exercise Exercise Shares Price Shares Price -------- --------- ---------- ----------- Balance at January 1 939,000 $3.51 788,000 $3.45 Options granted 330,000 6.46 305,000 3.72 Options exercised (378,000) 3.57 (13,000) 1.69 Options repurchased (15,000) 4.29 (89,000) 2.38 Options forfeited/expired (61,000) 5.73 (52,000) 6.26 ------- ------- Balance at December 31 815,000 4.49 939,000 3.51 ======= ----- ======= ----- Options exercisable 289,000 $3.01 500,000 $3.78 ======= ===== ======= =====
A-22 (12) STOCK OPTIONS, continued The weighted average fair value (the theoretical option value calculated using the Black Scholes option pricing model) of Company stock options granted during the years ended December 31, 2003 and 2002 is $2.20 and $1.46 per option, respectively. In this case, as of December 31, 2003, the weighted average theoretical option value per share of Company stock options ($8.66) less the weighted average exercise price of options granted ($6.46) equals the weighted average fair value of options granted ($2.20). The following table summarizes the Company's options outstanding and exercisable options at December 31, 2003:
Stock Options Outstanding Stock Options Exercisable ---------------------------------------------- ---------------------------- Average Weighted Weighted Remaining Average Average Range of Contractual Exercise Exercise Exercise Prices Shares Life Price Shares Price --------------- -------- ----------- ---------- ----------- ----------- $1.50 to 4.50 665,000 2.8 years $3.45 289,000 $3.01 $4.51 to $9.10 150,000 4.9 years $9.10 -- -- -------- ------- Total 815,000 289,000 ======== =======
(13) DISCONTINUED OPERATIONS Effective November 1, 2002, we completed the sale of APS Consulting to its management as we determined the division's operations were not consistent with our long-term strategic plan. We sold all of our APS Consulting shares for a de minimus amount of cash plus a $250,000 seven-year term note at the prime rate plus 3%. Our existing contract, which was entered into October 1, 2002, provides administrative support services to APS Consulting for a period of approximately seven years, and remained in effect. Fees under this contract are dependent on APS Consulting's pre-tax earnings but may not be less than $200,000 or more than $518,000 over the life of the agreement. Because we were dependent upon the future successful operation of the division to collect our proceeds from the disposal and because we had a security interest in the assets of the division, we had retained a sufficient risk of loss to preclude us from recognizing the divestiture of APS Consulting under the guidance of FASB Interpretation No 46. Accordingly, we did not recognize the divestiture of APS Consulting and continued to consolidate the division as an entity in which we have a variable interest that will absorb the majority of the entity's operating losses if they occurred. Effective November 1, 2003, APS Consulting was able to obtain third party financing and repay their note payable to us in exchange for our agreeing to discount the note by $35,000. We provided no guarantees or credit enhancements in connection with APS Consulting securing this financing. Accordingly, we no longer have a risk of loss related to these operations and have recognized the transaction as a divestiture. As a result, we ceased consolidation of APS Consulting financial statements effective November 1, 2003. In addition, we were able to recognize a gain of $27,000, net of tax, and administrative support fees totaling $84,000 for the period from November 1, 2002 through October 31, 2003 that had previously been eliminated as intercompany revenues. The accompanying financial statements reflect the financial position, results of operations and cash flows of APS Consulting as discontinued operations. A-23 (13) DISCONTINUED OPERATIONS, continued A summary of assets and liabilities related to discontinued operations as of December 31, 2002 is as follows: 2002 --------- ASSETS Cash $ 347,000 Accounts Receiveable, net 409,000 Prepaid Expenses 22,000 -------- Total Current Assets 778,000 Property and Equipment 45,000 -------- Total Assets $ 823,000 ======== LIABILITIES Accounts Payable $ 445,000 Accrued Expenses 74,000 ---------- Total Current Liabilities 519,000 Notes Payable 248,000 Deferred Income 74,000 --------- Total Liabilities $ 841,000 ========= Total Liabilities in excess of Assets $ 18,000 ========= A summary of results of operations related to discontinued operations for the years ended December 31, 2003 and 2002 is as follows: 2003 2002 ------- --------- Consulting Revenue -- $ 3,296,000 Consulting Expenses -- 2,909,000 ------- ----------- Net Income -- $ 387,000 ======= =========== (14) REPURCHASE OF MINORITY INTEREST On October 1, 2003 we purchased for $2,050,000 the 20% interest in APS Insurances Services, Inc., which was owned by FPIC Insurance Group, Inc. ("FPIC"). We believe the acquisition will provide us more control over operating decisions and will improve our earnings and return on capital with minimal risk. As a result of this transaction, we now own a 100% interest in APS Insurance Services. Prior to our repurchase of the minority interest, we consolidated the assets, liabilities and operations of APS Insurance Services and recorded 20% of its after tax net income as minority interest. As a part of the purchase agreement we maintained an agreement with FPIC that limits them from competing with us in Texas through February A-24 (14) REPURCHASE OF MINORITY INTERESt, continued 2007. The Company has assigned a value of $400,000 to this non-compete agreement, which is being amortized on the straight-line method through its expiration in 2007. The total cost of the acquisition was $2,050,000 and was allocated to the 20% interest acquired in APS Insurance Services based on the fair values of its net assets on the date of acquisition, in accordance with the purchase method of accounting for business combinations. The balances included in the Consolidated Balance Sheets related to the acquisition are based upon preliminary information and are subject to change when final asset and liability valuations are determined. Final valuations of assets and liabilities are determined and recorded within one year from the date of the acquisition. Material changes in the preliminary allocations are not anticipated by management. A summary of the purchase price allocation for this transaction is as follows: Purchase price of 20% interest $2,050,000 Basis of recorded minority interest (393,000) Allocated to non-competition agreement (400,000) ---------- Excess of purchase price over assets acquired (goodwill) $1,257,000 ========== The unaudited pro forma income statements below show the impact of the repurchase as if it had happened prior to the reporting periods: Year Ended December 31, ----------------------------------- 2003 2002 ------------- ----------- Revenue: As reported $30,449,000 $23,077,000 Pro forma $30,449,000 $23,077,000 Net earnings as reported $2,799,000 $ 3,411,000 Add: Minority Interest attributable to APS Insurance Services, net of income taxes $ 197,000 $ 268,000 ------------ ----------- Pro forma net earnings $ 2,996,000 $ 3,679,000 ============ =========== Earnings per share: Basic - as reported $1.27 $1.53 ===== ===== Basic - pro forma $1.36 $1.65 ===== ===== Diluted - as reported $1.14 $1.45 ===== ===== Diluted - pro forma $1.22 $1.57 ===== ===== As of December 31, 2003, the net carrying value of the non-compete agreement was $371,000, net of $29,000 accumulated amortization recognized during 2003. A-25 (14) REPURCHASE OF MINORITY INTEREST, continued We assume no residual value and estimate annual amortization expense over the remaining life of the agreement to be as follows: Year Amount -------- --------------- 2004 $117,000 2005 117,000 2006 117,000 2007 20,000 (15) INVESTMENT IN UNCONSOLIDATED AFFILIATES For the year ended December 31, 2003 and 2002, respectively, our equity in the gain (loss) of unconsolidated affiliates consisted of the following: December 31, ---------------------------- 2003 2002 Prime Medical Services, Inc. -- $ 186,000 Uncommon Care $ 260,000 (230,000) --------- ---------- Gain (loss) $ 260,000 $ (44,000) ========= ========== On October 12, 1989, we purchased 3,540,000 shares (42%) of the common stock of Prime Medical. In the ensuing years, the sale of stock, stock exchanges and stock issuances reduced our ownership and at December 31, 2003 our holdings stood at 728,400 or approximately 4% of the common stock outstanding. In the first quarter of 2002, with the sale of Prime Medical shares reducing our ownership to less than 5%, and our chairman and CEO reducing his responsibilities on Prime's Board, we discontinued the use of the equity method and began to account for our Prime Medical investment as an available-for-sale equity security. Prior to discontinuing equity method accounting on March 1, 2002 we recorded equity in Prime Medical's earnings of $186,000. In connection with the sales of Prime Medical shares during the year, we recognized a gain of $64,000 in 2003 and $2,855,000 in 2002. The gains are classified as "Gain on Sale of Investments" in the accompanying consolidated financial statements. Changes in market value of our Prime Medical shares are included in shareholders equity as "accumulated other comprehensive income". Prime is an SEC registrant and additional information on the company can be found on the SEC's web site at www.sec.gov. On January 1, 1998 we invested approximately $2,078,000 in the convertible preferred stock of Uncommon Care, Inc. and extended notes totaling $4,430,000. Uncommon Care is a developer and operator of Alzheimer's care facilities. We accounted for Uncommon Care using the equity method. A-26 (15) INVESTMENT IN UNCONSOLIDATED AFFILIATES, continued Recording our share of Uncommon Care's accumulated losses had reduced the carrying value of our investment and our notes to zero by December 31, 2002. Following Uncommon Care's payment default to its senior lender in 2003 we sold our interest for a de minimus amount and wrote off the notes. Some of our officers and directors participated in the $2,400,000 line of credit to Uncommon Care. For financial purposes this participation has been treated as a secured borrowing. In the aggregate, these officers and directors contributed approximately $259,000 to fund a 10.8% interest in the loan. They participate in the loan under the same terms as the Company. During 2002 we expensed the $230,000 that we advanced under the lines of credit. As this advance represented a funding of Uncommon Care's prior losses, the amount was expensed when advanced and is included in the equity in loss related to this affiliate. Repayments on the line of credit during 2002 were $85,000 and were recorded as deferred income to offset possible future advances. During 2003 we decided not to extend any future cash advances to Uncommon Care. Consequently, we took into income cash payments previously received from Uncommon Care. Total cash receipts recorded as equity in earnings of unconsolidated affiliates was $260,000 in 2003. (16) SEGMENT INFORMATION Our segments are distinct by type of service provided. Each segment has its own management team and separate financial reporting. Our Chief Executive Officer allocates resources and provides overall management based on the segments' financial results. Our financial services segment includes brokerage and asset management services to individuals and institutions. Our insurance services segment includes financial management for an insurance company that provides professional liability insurance to doctors. Corporate is the parent company and derives its income from interest, investments and dividends paid by the other segments. Income from the discontinued consulting segment was derived from operations in 2002 and from gains on disposal in 2003. A-27
2003 2002 ------------- --------------- OPERATING REVUENUES Financial services $ 19,623,000 $ 13,623,000 Insurance services 10,826,000 9,454,000 Other 2,567,000 1,024,000 ---------- ----------- $ 33,016,000 $ 24,101,000 ========== =========== RECONCILIATION TO CONSOLIDATED STATEMENTS OF OPERATIONS: Total segment revenues 33,016,000 24,101,000 Less: intercompany dividends (2,567,000) (1,024,000) ----------- ------------ Total Revenues $ 30,449,000 $ 23,077,000 =========== ============ OPERATING INCOME (LOSS): Financial services 3,039,000 $ 1,747,000 Insurance services 2,985,000 $ 2,388,000 Other 506,000 (412,000) ---------- ----------- $ 6,530,000 $ 3,723,000 ========== =========== RECONCILIATION TO CONSOLIDATED STATEMENTS OF OPERATIONS: Total segment operating profit $ 6,530,000 $ 3,723,000 Less: intercompany dividends (2,567,000) (1,024,000) ---------- ---------- Operating income 3,963,000 2,699,000 Gain on sale of investments 127,000 2,855,000 ---------- ---------- Income from continuing operations before interest, income taxes, minority interests and equity in gain and loss of unconsolidated affiliates 4,090,000 5,554,000 Interest income 304,000 372,000 Other loss (38,000) (158,000) Interest expense 7,000 24,000 Income tax expense 1,640,000 2,283,000 Minority interests 197,000 261,000 Equity in profit (loss) of affiliates 260,000 (44,000) --------- ---------- Income from continuing operations 2,772,000 3,156,000 Net income from discontinued operations, net of income tax -- 255,000 Gain on disposal of discontinued operations, net of income tax 27,000 -- --------- ---------- Net income $ 2,799,000 $ 3,411,000 ========= ==========
A-28 (16) SEGMENT INFORMATION, continued
2003 2002 --------- ---------- Identifiable assets: Financial services $ 4,970,000 $ 3,727,000 Insurance services 3,965,000 2,882,000 Corporate: Intangible assets 1,627,000 -- Investment in available for sale securities 9,626,000 11,284,000 Other 5,450,000 6,265,000 ----------- ----------- $25,638,000 $24,158,000 =========== =========== Capital expenditures: Financial services $ 32,000 $ 24,000 Insurance Services 160,000 78,000 Corporate 31,000 37,000 -------- -------- $ 223,000 $ 139,000 ======== ======== Depreciation/amortization expenses: Financial services $ 31,000 $ 42,000 Insurance Services 77,000 55,000 Corporate 65,000 73,000 -------- -------- $ 173,000 $ 170,000 ======== ========
Capital expenditures at our discontinued segment were $96,000 and $15,000 in 2003 and 2002, respectively. During the years ended December 31, 2003 and 2002, a single customer represented 36% ($10,826,000) and 41% ($9,454,000) of our consolidated revenues. At December 31, 2003 and 2002 we had long-term contracts with that customer and were therefore not vulnerable to the risk of a near-term severe impact from a reasonably possible loss of the revenue. However, should that customer default or be unable to satisfy its contractual obligations, there would be a material adverse effect on our financial condition and results of operations. Operating income (loss) is operating revenues less related expenses and is all derived from domestic operations. Identifiable assets are those assets that are used in the operations of each business segment (after elimination of investments in other segments). Corporate assets consist primarily of cash and cash equivalents, notes receivable, investments in available-for-sale securities, investments in affiliates and intangible assets. A-29 (17) NET INCOME PER SHARE Basic income per share are based on the weighted average shares outstanding without any dilutive effects considered. Diluted earnings per share reflects dilution from all contingently issuable shares, including options. A reconciliation of income and average shares outstanding used in the calculation of basic and diluted earnings per share from continuing and discontinued operations follows:
For the Year Ended December 31, 2003 ---------------------------------------------------- Income Shares Per-Share (Numerator) (Denominator) Amount -------------- ---------------- ------------ Income from continuing operations $2,772,000 Discontinued operations, net of tax 27,000 Basic EPS: Income available to common stockholders 2,799,000 2,207,000 $1.27 Effect of dilutive securities -- 242,000 ===== --------- --------- Diluted EPS: Income available to common stockholders $2,799,000 2,449,000 $1.14 ========= ========= ===== For the Year Ended December 31, 2002 ---------------------------------------------------- Income Shares Per-Share (Numerator) (Denominator) Amount -------------- ---------------- ------------ Income from continuing operations $3,156,000 Discontinued operations, net of tax 255,000 Basic EPS: Income available to common stockholders 3,411,000 2,227,000 $1.53 Effect of dilutive securities -- 118,000 ===== --------- --------- Diluted EPS: Income available to common stockholders $3,411,000 2,345,000 $1.45 ========= ========= =====
Unexercised employee stock options to purchase 191,250 and 432,000 shares of our common stock for the years ended December 31, 2003 and 2002, respectively, were not included in the computations of diluted EPS because their effect would be antidilutive. A-30 (18) SHAREHOLDERS' EQUITY The following table presents changes in shares outstanding for the period from December 31, 2001 to December 31, 2003: Common Shares Treasury Outstanding Stock ----------------------------------- Balance December 31, 2001 2,745,231 386,000 Options excercised 13,000 -- Treasury stock purchases -- 238,388 Treasury stock retirements (624,388) (624,388) ----------- --------- Balance December 31, 2002 2,133,843 -- =========== ========= Options excercised 377,800 -- Treasury stock purchases -- 56,976 Treasury stock retirements (56,976) (56,976) ----------- --------- Balance December 31, 2003 2,454,667 -- =========== ========= (19) QUARTERLY RESULTS (UNAUDITED) Quarter to quarter comparisons of results of operations have been and may be materially impacted by bond market conditions and whether or not there are profits at the medical malpractice insurance company which we manage and whose profits we share. We believe that the historical pattern of quarterly sales and income as a percentage of the annual total may not be indicative of the pattern in future years. The following tables set forth selected quarterly consolidated statements of operations information for the years ended December 31, 2003 and 2002: A-31
(In thousands, except per share data) 2003 First Second Third Fourth Quarter Quarter Quarter Quarter ---------- --------- --------- --------- Revenues $ 6,616 $ 6,946 $ 9,047 $ 7,840 Income from continuing operations 551 683 731 807 Discontinued operations, net of taxes -- -- -- 27 Net income 551 683 731 834 Basic net income per share: From continuing operations $ 0.26 $ 0.32 $ 0.34 $ 0.34 Discontinued operations, net of taxes -- -- -- 0.01 Net income $ 0.26 $ 0.32 $ 0.34 $ 0.35 Diluted income per share: From continuing operations $ 0.25 $ 0.30 $ 0.31 $ 0.30 Discontinued operations, net of taxes -- -- -- 0.01 Net income $ 0.25 $ 0.30 $ 0.31 $ 0.31 2002 Revenues $ 5,206 $ 5,442 $ 6,254 $ 6,175 Income from continuing operations 2,558 335 204 59 Discontinued operations, net of taxes 44 114 92 5 Net income 2,602 449 296 64 Basic net income per share: From continuing operations $ 1.10 $ 0.15 $ 0.09 $ 0.03 Discontinued operations, net of taxes $ 0.02 $ 0.05 $ 0.04 -- Net income $ 1.12 $ 0.20 $ 0.13 $ 0.03 Diluted income per share: From continuing operations $ 1.06 $ 0.14 $ 0.09 $ 0.03 Discontinued operations, net of taxes $ 0.02 $ 0.05 $ 0.04 -- Net income $ 1.07 $ 0.19 $ 0.13 $ 0.03
A-32 (19) QUARTERLY RESULTS (UNAUDITED), continued Results for the first quarter of 2002 include gains on the sale of 1,570,000 shares of Prime Medical common stock totaling $2,802,000 pre-tax. In connection with these sales, we also recognized a portion of the $760,000 gain on sale of real estate related to our 15% interest in Prime. Such gains recognized in the first quarter were approximately $500,000. Results for the fourth quarter of 2002 include an adjustment increasing federal income tax expense by $214,000. This adjustment represents a one-time tax adjustment relating to APS Consulting. Results for the fourth quarter of 2003 include profit sharing with APIE totaling $722,000. (20) CONCENTRATION OF CREDIT RISK MARKETABLE SECURITIES As of December 31, 2003 we owned marketable securities of Prime Medical and Financial Industries Corporation with a combined fair market value of $9,627,000, or approximately 37% of our total assets. An event having a material adverse effect on Prime Medical and/or Financial Industries, and resulting in a devaluation of their securities would also have a material adverse effect on our financial condition and results of operations. GEOGRAPHIC CONCENTRATION OF INSURANCE SERVICES Most of the managed insurance company's business is concentrated in Texas. Regulatory or judicial actions in that state that affected rates, competition, or tort law could have a significant impact on the insurance company's business. Consequently, our insurance management business, which is based on the premiums and profitability of the managed company, could be adversely affected. FINANCIAL MARKET CONCENTRATION OF INVESTMENT SERVICES Investment Services derives most of its revenue through commissions earned on the trading of fixed-income securities. Should conditions reduce the market's demand for fixed-income products, and should Investment Services be unable to shift it emphasis to other financial products, it could have a material adverse impact on our financial condition and results of operations. A-33 EX-21 3 exh_211.txt SUBSIDIARIES OF APS GROUP Exhibit 21.1 AMERICAN PHYSICIANS SERVICE GROUP, INC. LIST OF SUBSIDIARIES AS OF DECEMBER 31, 2003 APS Investment Services, Inc. APS Financial. Inc. APS Asset Management, Inc. APS Insurance Services, Inc. APS Facilities Management, Inc. dba APMC Insurance Services, Inc. APSFM, Inc. American Physicians Insurance Agency, Inc. APSC, Inc. APS Professional Liability Insurance Exchange FMI Partners, Ltd. American Physicians Management Consulting, Inc. APMC Financial Services, Inc. EX-23 4 exh_231.txt CONSENT OF AUDITORS, BDO SEIDMAN Exhibit 23.1 Independent Auditors' Consent The Board of Directors and Shareholders American Physicians Service Group, Inc. We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (No. 333-07427, and No. 333-62233) of American Physicians Service Group, Inc. of our report dated March 30, 2004, relating to the consolidated financial statements, which appears in this Form 10-KSB. /s/ BDO Seidman, LLP --------------------- Houston, Texas March 30, 2004 EX-31 5 exh_311.txt CERTIFICATION OF CHIEF EXECUTIVE OFICER Exhibit 31.1 CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO RULE 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED CERTIFICATION I, Kenneth S. Shifrin, certify that: 1. I have reviewed this annual report on Form 10-KSB of American Physicians Service Group, Inc.; 2. based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. the registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: (a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (c) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): (a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: March 30, 2004 /s/ Kenneth S. Shifrin ------------------------------ Kenneth S. Shifrin Chairman of the Board EX-31 6 exh_312.txt CERTIFICATION OF CHIEF FINANCIAL OFFICER Exhibit 31.2 CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO RULE 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED CERTIFICATION I, William H. Hayes, certify that: 1. I have reviewed this annual report on Form 10-KSB of American Physicians Service Group, Inc.; 2. based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. the registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: (a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (c) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): (a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: March 30, 2004 /s/ William H. Hayes ------------------------------ William H. Hayes Senior Vice President-Finance EX-32 7 exh_321.txt CERTIFICATION OF CHIEF EXECUTIVE OFFICER Exhibit 32.1 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350 AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report of American Physicians Service Group, Inc. (the "Company") on Form 10-KSB for the year ending December 31, 2003 as filed with the Securities and Exchange commission on the date hereof (the "Report"), the undersigned, in the capacity and on the date indicated below, hereby certifies pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to the best of his knowledge: 1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operation of the Company. /s/ Kenneth S. Shifrin March 30, 2004 - --------------------------- ------------------ Kenneth S. Shifrin Date Chief Executive Officer EX-32 8 exh_322.txt CERTIFICATION OF CHIEF FINANCIAL OFFICER Exhibit 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350 AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report of American Physicians Service Group, Inc. (the "Company") on Form 10-KSB for the year ending December 31, 2003 as filed with the Securities and Exchange commission on the date hereof (the "Report"), the undersigned, in the capacity and on the date indicated below, hereby certifies pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to the best of his knowledge: 1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operation of the Company. /s/ William H. Hayes March 30, 2004 - --------------------------- ------------------ William H. Hayes Date Chief Financial Officer EX-99.A9 9 stkpurch.txt STOCK PURCHASE AGREEMENT WITH FPIC Exhibit 10.31 STOCK PURCHASE AGREEMENT This Stock Purchase Agreement ("Agreement") is entered into as of October 1, 2003, by and among American Physicians Service Group, Inc., a Texas corporation("Buyer"), and FPIC Insurance Group, Inc., a Florida corporation ("Selling Shareholder"). APS Insurance Services, Inc., a Delaware corporation ("APS") is a signatory to this Agreement for the limited purposes set forth herein. RECITALS WHEREAS, Buyer and First Professionals Insurance Company, Inc. a Florida insurance company (formerly known as Florida Physicians Insurance Company, Inc. and hereinafter "First Professionals") entered into that certain Stock Purchase and Stock Option Agreement dated as of April 1, 1997 (as may have been subsequently amended, the "Original Purchase Agreement") whereby Buyer sold to Selling Shareholder 200 shares of Common Stock (the "Shares") of APS; and WHEREAS, First Professionals assigned its rights and obligations under the Original Purchase Agreement to the Selling Shareholder by that certain letter agreement dated May 30, 1997, by and among Buyer, the Selling Shareholder and First Professionals; and WHEREAS, Buyer, the Selling Shareholder and APS entered into that certain Shareholders Agreement dated as of June 30, 1997 (the "Shareholders Agreement"); and WHEREAS, First Professionals and American Physicians Insurance Agency, Inc., a Texas corporation ("APS Agency") entered into that certain Managing General Agency Agreement dated effective March 27, 1997 (the "MGA Agreement"); and WHEREAS, First Professionals and American Physicians Insurance Exchange ("APS Exchange") entered into that certain Reinsurance Agreement dated effective March 27, 1997 (the "Reinsurance Agreement"); and WHEREAS, First Professionals, APS Exchange and APS Agency entered into that certain Agreement to Cease Writing Business dated effective June 1, 2002 (the "2002 Agreement"); and WHEREAS, Buyer now desires to buy from Selling Shareholder, and Selling Shareholder desires to sell to Buyer, the Shares, which constitute all of selling Shareholder's equity interests in APS; and WHEREAS, Buyer, the Selling Shareholder and APS desire to terminate the Shareholders Agreement, and all rights, obligations and liabilities under the Original Purchase Agreement; and WHEREAS, APS Agency and First Professionals desire to continue the Reinsurance Agreement and the MGA Agreement (as amended by the 2002 Agreement) subject to the modification by that certain Amendment to Managing General Agency Agreement attached hereto as Exhibit "A" (the "Modification Agreement") to be executed and delivered concurrent with the execution of this Agreement, between Selling Shareholder and APS. 2 In consideration of the mutual promises, representations, warranties, covenants, and conditions set forth in this Agreement the parties to this Agreement agree as follows: 1. OWNERSHIP AND SALE OF SHARES. 1.1 OWNERSHIP OF SHARES. The Selling Shareholder owns the Shares which constitute 100% of the APS capital stock owned by Selling Shareholder. 1.2 SALE OF SHARES. Subject to the terms and conditions hereof, on the Closing Date the Selling Shareholder shall sell and transfer to Buyer, and Buyer shall purchase from the Selling Shareholder, the Shares for a total purchase price of TWO MILLION FIFTY THOUSAND AND NO/100 DOLLARS ($2,050,000). 1.3 PAYMENT FOR SHARES. The purchase price for the Shares shall be paid in cash at Closing. 2. CLOSING; DELIVERY. 2.1 Closing. The Closing of the purchase and sale of the Shares (the "Closing") shall be held at the offices of APS within five business days after the satisfaction or waiver of the conditions set forth in Sections 8 and 9 or at such other time and place as is mutually agreed upon by the parties (the "CLOSING DATE"). 2.2 Delivery. At the Closing, the Selling Shareholder shall deliver to Buyer a duly endorsed certificate representing the Shares being sold, together with a properly executed stock power in form and substance reasonably acceptable to Buyer, against Buyer's delivery of the consideration described in Section 1.2 above. 3 3. OTHER AGREEMENTS. 3.1 Termination of Shareholders Agreement and Original Purchase Agreement. Buyer, the Selling Shareholder, and APS hereby agree that (i) the Shareholders Agreement and Original Purchase Agreement are for all purposes terminated, (ii) no party shall have any obligations under the Shareholders Agreement or Original Purchase Agreement, and (iii) no party shall have any rights under the Shareholders Agreement or Original Purchase Agreement or arising in connection therewith, including but not limited to any rights with respect to any option to purchase additional shares of APS stock or to receive any dividends or distributions of any kind. 3.2 Survival of Other Agreements. The parties hereto acknowledge and agree that the 2002 Agreement, the Reinsurance Agreement and the MGA Agreement, as modified by the 2002 Agreement and as further modified by the Modification Agreement to be executed and delivered at the Closing, will survive this Purchase Agreement and continue to be binding and enforceable according to their respective terms, as so modified. 4. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDER. The Selling Shareholder hereby represents and warrants to the Buyer as follows: 4.1 Organization and Good Standing. The Selling Shareholder and First Professionals are corporations, duly organized, validly existing and in good standing under the laws of the State of Florida. The Selling Shareholder has all requisite corporate power and authority and holds all licenses, permits, and other required authorizations from 4 governmental authorities necessary to conduct its business and consummate the transaction contemplated by this Agreement. First Professionals has all requisite corporate power and authority and holds all licenses, permits, and other required authorizations from governmental authorities necessary to conduct its business and consummate the transaction contemplated by the Modification Agreement. 4.2 Corporate Power. The Selling Shareholder has all requisite legal and corporate power and authority to enter into this Agreement and on the Closing Date the Selling Shareholder will have all requisite legal and corporate power and authority to sell the Shares and to carry out and perform its obligations under this Agreement. First Professionals has all requisite legal and corporate power and authority to enter into the Modification Agreement and on the Closing Date First Professionals will have all requisite legal and corporate power and authority to carry out and perform its obligations under the Modification Agreement. 4.3 Ownership of the Shares. The Selling Shareholder is and, at the Closing will be, the sole beneficial owner of the Shares free of any liens, claims or encumbrances. Other than the Shares, the Selling Shareholder does not own any shares or rights to receive shares, of capital stock of, or other equity, membership, partnership or ownership interest in, APS or any parent, subsidiary or affiliate (collectively, the "APS Parties" and individually, an "APS Party") of APS, including, without limitation, any options, warrants, convertible instruments or other rights whatsoever to acquire or receive any additional capital stock, of any class, of, or other equity, membership, partnership or ownership interest in, or dividends or distributions from, any APS Party. The Selling Shareholder has not assigned any of its rights under the Original Purchase Agreement. 5 4.4 Authorization. The making and performance by the Selling Shareholder of this Agreement has been duly authorized by all necessary corporate action and will not violate any law, rule, regulation, order, writ, judgment, decree, determination or award presently in effect having applicability to the Selling Shareholder or any provision of the Selling Shareholder's Certificate of Incorporation, as amended, or Bylaws, as amended, or result in a breach of or constitute a default under any indenture, bank loan, credit agreement or other agreement or instrument to which the Selling Shareholder is presently a party or by which the Selling Shareholder or its property is presently bound or affected. This Agreement constitutes the valid and legally binding obligation of the Selling Shareholder enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, or other laws of general application affecting the rights and remedies of creditors. The making and performance by First Professionals of the Modification Agreement has been duly authorized by all necessary corporate action and will not violate any law, rule, regulation, order, writ, judgment, decree, determination or award presently in effect having applicability to First Professionals or any provision of First Professionals' Certificate of Incorporation, as amended, or Bylaws, as amended, or result in a breach of or constitute a default under any indenture, bank loan, credit agreement or other agreement or instrument to which First Professionals is presently a party or by which First Professionals or its property is presently bound or affected. The Modification Agreement constitutes the valid and legally binding obligation of First Professionals enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, or other laws of general application affecting the rights and remedies of creditors. 6 4.5 Private Placement. To the best of Selling Shareholder's knowledge, based on the representations, warranties and agreements of Buyer contained herein (i) the offering of the Shares qualifies as a private placement and/or exempt transaction under all applicable securities laws, and (ii) no registration is required under any applicable securities laws with respect to such offering, and any filings required to be made have been, or will on a timely basis be, duly made. 4.6 Brokerage. No person is entitled, directly or indirectly, to compensation as a broker or finder, in connection with the sale and purchase of the Shares as contemplated by this Agreement. Except for any obligations agreed to in writing by the Buyer, the Selling Shareholder agrees to indemnify and hold the Buyer and its agents and representatives harmless against and in respect of any claims, damages, suits, obligations, liabilities, or expenses (including, without limitation, reasonable attorneys' fees and expenses) arising out of or relating to the assertion of any brokerage or finder's fee or other commission based on actions by the Selling Shareholder relative to this Agreement or the transactions contemplated thereby. 4.7 Misleading Statements. No representation or warranty by the Selling Shareholder in this Agreement or in any written statement or certificate furnished by the Selling Shareholder to the Buyer pursuant to this Agreement or in connection with the transactions contemplated by this Agreement, or in any related agreements, separately or when taken together, contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary to make the statements made not misleading. 7 5. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer hereby represents and warrants to the Selling Shareholder as follows: 5.1 Organization and Good Standing. The Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas. The Buyer has all requisite power and authority, and holds all licenses, permits, and other required authorizations from governmental authorities, necessary to conduct its business and consummate the transactions contemplated by this Agreement entered into by Buyer in connection with the transactions contemplated hereby. APS Agency is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas. APS Agency has all requisite power and authority, and holds all licenses, permits, and other required authorizations from governmental authorities, necessary to conduct its business and consummate the transactions contemplated by the Modification Agreement. 5.2 Power and Authority. The Buyer has all requisite legal power and authority to enter into this Agreement and to carry out and perform its obligations under the terms of this Agreement. 5.3 Authorization. The making and performance by the Buyer of this Agreement has been duly authorized by all necessary corporate action and will not violate any law, rule, regulation, order, writ, judgment, decree, determination, or award presently in effect having applicability to the Buyer or any provisions of the Buyer's organizational documents, as amended, or result in a breach of or constitute a default under any indenture, bank loan, credit agreement, other agreement or instrument to which the Buyer is presently a party or by which the Buyer or its property is presently bound or affected. 8 This Agreement constitutes valid and legally binding obligations of the Buyer enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization or other laws of general application affecting the rights and remedies of creditors. 5.4 Investment Plan. The Buyer is purchasing and acquiring the Shares for its own account for investment and not with a present view to, or for sale in connection with, any distribution thereof or any selling or granting any participation therein. The Buyer does not have any contract, undertaking, agreement, or arrangement with any person to sell, transfer or grant participations to any third person with respect to any of the Shares. 5.5 Restricted Securities. The Buyer understands that the Shares will not be registered under the Securities Act of 1933, as amended (the "1933 Act"), on the basis that the sale provided for in this Agreement is exempt from registration under the 1933 Act pursuant to exemptions contained therein, and that the Selling Shareholder's reliance on such exemptions is, in part, predicated on the Buyer's representations set forth herein. 5.6 Illiquidity. The Buyer understands that the Shares may not be sold, transferred or otherwise disposed of without registration under the 1933 Act or an exemption therefrom and applicable state securities laws or an exemption therefrom. In the absence of an effective registration statement covering the Shares or an available exemption from such registration, the Shares may not be disposed of. 5.7 Sophistication. The Buyer is experienced in evaluating and investing in companies such as APS, is able to fend for itself in the transactions contemplated by this Agreement, has such knowledge and experience in 9 financial and business matters as to be capable of evaluating the merits and risks of its investment, and has the ability to bear the economic risk of its investment. 5.8 Misleading Statements. No representation or warranty by the Buyer in this Agreement or in any written statement or certificate furnished by the Buyer to the Selling Shareholder or APS pursuant to this Agreement or in connection with the transactions contemplated by this Agreement or in any related agreements, separately or when taken together, contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary to make the statements made not misleading. 6. AFFIRMATIVE COVENANTS OF THE SELLING SHAREHOLDER. The Selling Shareholder covenants and agrees that: 6.1 Resignation. At the Closing, Kim D. Thorpe will tender his immediate resignation from all positions related to APS, including without limitation any position as an officer or director of APS. 6.2 REASONABLE EFFORTS. The Selling Shareholder shall use reasonable efforts to fulfill, as soon as practicable, all of the conditions contained in SECTION 9 hereof. Such efforts shall not require any waiver of a condition to Closing or of any other term or condition hereof. 7. AFFIRMATIVE COVENANT OF THE BUYER. The Buyer shall use reasonable efforts to fulfill, as soon as practicable, all of the conditions contained in Section 8 hereof. Such efforts shall not require any waiver of a condition to Closing or of any other term or condition hereof. 10 8. THE SELLING SHAREHOLDER'S CONDITIONS TO CLOSING. The obligation of the Selling Shareholder to sell the Shares as contemplated in this Agreement shall be subject to the fulfillment on or before the Closing of each of the following conditions: 8.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of the BUYER contained in Section 5 shall be true and correct as of the Closing Date with the same effect as though made on and as of such date. 8.2 Approvals. All authorizations, approvals or permits, or exemptions, of any governmental authority or regulatory body of the United States or of any state including but not limited to the Texas Insurance Department that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement, shall have been duly obtained and shall be effective on and as of the Closing. 8.3 Performance. All covenants, agreements and conditions contained in this Agreement to be performed or complied with by the Buyer on or prior to the Closing Date shall have been performed or complied with in all material respects. 8.4 Compliance Certificates. The Buyer shall have delivered to the Selling Shareholder a certificate dated the Closing Date executed by a duly authorized officer of the Buyer certifying to the fulfillment of the conditions specified in this Section 8. 8.5 Proceedings and Documents. All proceedings of the Buyer in connection with the transactions contemplated hereby and all documents and instruments incident to such transactions shall be satisfactory in form and substance to the Selling Shareholder, and the Selling Shareholder 11 shall have received all such counterpart originals or certified or other copies of such documents as it may reasonably request. 8.6 EXECUTION OF MODIFICATION AGREEMENT. APS Agency shall have executed and delivered the Modification Agreement. 9. THE BUYER'S CONDITIONS OF CLOSING. The obligation of the Buyer to purchase the Shares as contemplated in this Agreement shall be subject to the fulfillment on or before the closing of each of the following conditions: 9.1 Representations and Warranties. The representations and warranties of the Selling Shareholder contained in Section 4 hereof shall be true and correct as of the Closing Date with the same effect as though made on and as of such date. 9.2 Approvals. All authorizations, approvals or permits, or exemptions, of any governmental authority or regulatory body of the United States or of any state including but not limited to the Texas Insurance Department that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement, shall have been duly obtained and shall be effective on and as of the Closing. 9.3 Performance. All covenants, agreements and conditions contained in this Agreement to be performed or complied with by the Selling Shareholder on or prior to the Closing Date shall have been performed or complied with in all material respects. 9.4 Compliance Certificate. Selling Shareholder shall have delivered to the Buyer a certificate or certificates, executed by a duly authorized officer of the Selling Shareholder, dated the Closing Date, certifying to the fulfillment of the conditions specified in this Section 9. 12 9.5 Proceedings and Documents. All corporate and other proceedings of the Selling Shareholder in connection with the transactions contemplated hereby and all documents and instruments incident to such transactions shall be satisfactory in form and substance to the Buyer, and the Buyer shall have received all such counterpart originals or certified or other copies of such documents as it may reasonably request. 9.6 EXECUTION OF MODIFICATION AGREEMENT. First Professionals shall have executed and delivered to Buyer the Modification Agreement. 10. INDEMNIFICATION. 10.1 Indemnification of Selling Shareholder. Selling Shareholder hereby agrees to indemnify Buyer and hold Buyer harmless from and against and in respect of, all liabilities, losses, claims, costs or damages (including reasonable attorneys' fees and disbursements) (collectively, "Losses") incurred by Buyer and resulting from or arising out of (i) any breach or inaccuracy of any representations or warranties by Selling Shareholder contained either herein or in any certificate delivered pursuant hereto, including any certificates delivered on the Closing Date or (ii) any failure by Selling Shareholder to perform any of its obligations contained herein. 10.2 Indemnification of Buyer. Buyer hereby agrees to indemnify Selling Shareholder and hold Selling Shareholder harmless from and against and in respect of, all Losses incurred by Selling Shareholder and resulting from or arising out of (i) any breach or inaccuracy of any 13 representations or warranties by Buyer contained herein or in any certificate delivered pursuant hereto including any certificates delivered on the Closing Date or (ii) any failure by Buyer to perform any of its obligations contained herein. 11. TERMINATION. This Agreement may be terminated as to all parties hereto and the transactions contemplated herein abandoned at any time prior to the Closing by: (a) The mutual consent of the parties hereto; (b) The Buyer at any time after October 31, 2003, if at such time the conditions set forth in Section 9 hereof have not been satisfied through no fault of the Buyer and the Buyer gives the Selling Shareholder notice thereof; or (c) The Selling Shareholder at any time after October 31, 2003, if at such time the conditions set forth in Section 8 hereof have not been satisfied through no fault of the Selling Shareholder and the Selling Shareholder gives the Buyer notice thereof. 12. CONFIDENTIALITY. From and after the date hereof, unless otherwise agreed to by the parties, each of the parties shall keep, and shall ensure that its directors, executive officers, contractors, consultants and agents keep, confidential all information acquired from the other party pursuant to this Agreement or otherwise, including the contents of this 14 Agreement and any document delivered pursuant thereto or in connection therewith, except that the foregoing restriction shall not apply to any information that: (i) is or hereafter becomes generally available to the public other than by reason of any default with respect to a confidentiality obligation under this Agreement, (ii) was already known to the recipient as evidenced by prior written documents in its possession (unless the information is covered by a prior confidentiality agreement between the parties), (iii) is disclosed to the recipient by a third party who is not in default of any confidentiality obligation to the disclosing party hereunder, (iv) is developed by or on behalf of the receiving party, without reliance on confidential information received hereunder, (v) is submitted by the recipient to governmental authorities or regulatory bodies to facilitate the issuance of approvals necessary or appropriate for the operation of their businesses, provided that reasonable measures shall be taken to assure confidential treatment of such information, (vi) is provided by the recipient to third parties under appropriate terms and conditions, including confidentiality provisions substantially equivalent to those in this Agreement or (vii) is otherwise required to be disclosed in compliance with applicable laws or order by a court or other government authority or regulatory body having competent jurisdiction. Notwithstanding the foregoing, Buyer and Selling Shareholder agree that each party shall be entitled to distribute press releases prepared by it concerning the entering into of this Agreement and the Closing of the transactions contemplated herein as each party deems reasonably necessary for purposes of ensuring compliance with applicable securities laws. Otherwise, no press release or similar public announcement or disclosure concerning this Agreement or the transactions contemplated herein shall be made by a party hereto without the prior written consent of the other party. Each party shall 15 be entitled, in addition to any other right or remedy it may have, at law or in equity, to an injunction, without the posting of any bond or other security, enjoining or restraining the other party from any violation or threatened violation of this Section. 13. MISCELLANEOUS. 13.1 Modification to Agreement. This Agreement may not be changed orally but only by an agreement in writing, signed by the party against whom enforcement of any waiver, change, modification or discharge is sought. Subject to the foregoing, any of the terms or conditions of this Agreement may be waived or modified at any time by the party entitled to the benefit thereof, but no such waiver, express or implied, shall affect or impair the right of the waiving party to require observance performance or satisfaction of either (i) the same term or condition as it applies on a subsequent or previous occasion, or (ii) any other term or condition hereof. 13.2 Applicable Law. This Agreement, its construction and the rights, remedies, and obligations arising by, under, through or on account of it shall be governed by the laws of the State of Delaware, excluding its conflict of laws rules. 13.3 Binding Effect. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, such declaration shall not affect the validity of the remaining provisions. This Agreement shall inure to the benefit of and be binding upon the representatives, successors, and assigns of each party. This Agreement is not intended for the benefit of anyone other than the signatories hereto, and there shall be no third party beneficiaries hereof. 16 13.4 Integration. This Agreement, together with the Modification Agreement related hereto, constitutes a final and complete integration of the agreement of the parties respecting the subject matter hereof, thereby superseding all previous oral and written agreements. There are no contemporaneous oral agreements. 13.5 Notices. Any notice hereunder (including notices of waiver provided for or permitted hereunder), shall be in writing and hand delivered or sent by certified mail return receipt requested, nationally recognized overnight courier service or facsimile transmission, addressed to the parties at their respective addresses set forth below: Buyer: American Physicians Services Group, Inc. 1301 Capital of Texas Highway Suite C-300 Austin, Texas 78746 Attention: Kenneth S. Shifrin, President With a copy to: Akin Gump Strauss Hauer & Feld LLP 300 West 6th Street, Suite 2100 Austin, Texas 78701 Attention: Timothy L. LaFrey The Selling Shareholder: FPIC Insurance Group, Inc. 225 Water Street, Suite 1400 Jacksonville, Florida 32202-5147 Attention: Kim D. Thorpe, EVP, CFO Phone: (904) 354-2482, ext. 3265 Fax: (904) 633-9579 e-mail: kthorpe@fpic.com With a copy to: FPIC Insurance Group, Inc. 225 Water Street, Suite 1400 Jacksonville, Florida 32256-5147 Attention: Roberta G. Cown, III, SVP, Corporate Counsel Phone: (904) 354-2482, ext. 3315 Fax: (904) 633-9579 e-mail: cown@fpic.com 17 Any such notice shall be deemed given when so personally delivered or sent by facsimile transmission (provided confirmation is received immediately thereafter) or if mailed three (3) business days after the date of deposit in the mail or if sent by overnight courier one (1) business day after the date of delivery to the courier service marked for overnight delivery. A party may change its or his address for notice by giving notice as provided hereunder. 13.6 Pronouns, Counterparts. In construing the words of this Agreement, plural constructions shall include the singular and singular constructions shall include the plural. No significance shall be attached to whether a pronoun is masculine, feminine or neuter. The words "herein," "hereof' and other similar compounds of the word "here" shall mean and refer to his entire Agreement and not to any particular provisions, section or subsection. Paragraph captions in this Agreement are for ease of reference only and shall be given no substantive or restrictive meaning or significance whatsoever. This Agreement may be executed in multiple counterparts, each of which shall be an original regardless of whether all parties sign the same document. Regardless of the number of counterparts, they shall constitute one and the same agreement. It shall not be necessary in making proof of this Agreement to produce or account for more than one counterpart. 13.7 Survival of Representations, Warranties, Covenants and Agreements. The representations, warranties, covenants and agreements set forth in this Agreement shall survive the Closing Date and the consummation of the transactions contemplated hereby for a period of two years. 18 13.8 Attorneys' Fees. In any action brought to enforce the provisions of this Agreement (including a declaratory judgment action), the prevailing party shall be entitled to recover from the other party the costs of this action, including reasonable attorneys' fees, whether incurred at trial, in settlement or mediation or on appeal. 13.9 Assignment. No party may assign any of its or his rights or obligations under this Agreement without the prior written consent of the other parties. This Agreement shall inure to the benefit of, and be binding upon, the successors and permitted assigns of the parties hereto. 13.10 Further Assurances. From and after the Closing, each party shall execute and deliver such documents and take such other actions as the other parties may reasonably request to further effect or evidence the purposes and intent of this Agreement. 13.11 Definition of Knowledge. Whenever there are references in this Agreement to the "knowledge" of a party; (i) Selling Shareholder shall be deemed to have knowledge of the applicable fact or matter whenever any of the members of the board of directors, or executive officers, of Selling Shareholder, or First Professionals, have actual knowledge of the applicable fact or matter, and (ii) Buyer shall be deemed to have knowledge of the applicable fact or matter whenever any of the members of the board of directors, or any of the executive officers, of Buyer have actual knowledge of the applicable fact or matter. Signature Page Follows 19 S-1 5375845 v4 IN WITNESS WHEREOF, the parties have executed this Agreement as of October 30, 2003. AMERICAN PHYSICIANS SERVICE GROUP, INC. By: /s/ Kenneth S. Shifrin --------------------------- Printed Name: Kenneth S. Shifrin --------------------------- Title: Chief Executive Officer --------------------------- FPIC INSURANCE GROUP, INC. By: ___________________________________________ Printed Name: ___________________________________ Title: _________________________________________ Solely for purposes of evidencing its agreement and covenant to be bound by Section 3 of this Agreement: APS Insurance Services, Inc. By: /s/ Maury Magids ----------------------- Printed Name: Maury Magids ----------------------- Title: Sr. Vice President ----------------------- S-1 A-1 5375845 v4 EXHIBIT "A" FORM OF MODIFICATION AGREEMENT A-1 EX-99 10 pc_loan.txt LOAN AGREEMENT WITH PLAINSCAPITAL BANK Exhibit 10.32 REVOLVING PROMISSORY NOTE $3,000,000.00 November 12, 2003 For value received, AMERICAN PHYSICIANS SERVICE GROUP, INC., a Texas corporation (the "Makers," whether one or more), promise to pay to the order of PLAINSCAPITAL BANK, a Texas state bank (the "Payee"), at 919 Congress Avenue, Austin, Travis County, Texas 78701, or such other location as the Payee designates to the Makers in writing, the principal sum of THREE MILLION AND NO/100 DOLLARS ($3,000,000.00), or the outstanding principal amount advanced hereunder, whichever is less, in legal and lawful money of the United States of America, with interest thereon as hereinafter specified. TERMS OF PAYMENT: Interest only shall be due and payable in installments commencing on November 15, 2003, and continuing regularly thereafter on the 15th day of each calendar month until April 15, 2004 (the "Maturity Date"), when the entire amount of the Note, principal and interest then remaining unpaid, shall be due and payable. The principal sum of this Note represents a revolving credit, all or any part of which may be advanced to the Makers, repaid by the Makers and re-advanced to the Makers, without the necessity for the execution of any other instruments, at any time prior to the earlier of (i) the date on which demand for payment is made hereunder or (ii) the Maturity Date; provided, however that the unpaid principal balance of this Note shall never exceed the sum of $3,000,000.00. All advances and all payments made on account of this Note shall be recorded by the Payee, whose records shall be deemed correct absent manifest error. In no event shall the provisions of Chapter 346 of the Texas Finance Code, as amended (which regulates certain revolving loan accounts and revolving tri-party accounts) apply to the loan evidenced by this Note. PAYMENT ON NON-BUSINESS DAYS: If any payment hereunder falls due on a Saturday, Sunday or public holiday on which commercial banks in Austin, Texas are permitted or required by law to be closed, the time for such payment shall be extended to the next day on which the Payee is open for business, and such extension of time shall be included in the calculation of interest accruing and payable hereunder. LATE PAYMENT CHARGE: The Makers agree to pay to the Payee a late payment service charge in an amount equal to five percent (5%) of any regularly scheduled principal and accrued interest installment which is not received by the Payee within ten (10) days after the installment is due; provided however, such late payment service charge shall not apply to the principal and interest installment due on the Maturity Date. RATE OF INTEREST: From the date hereof until November 15, 2003, interest (calculated on the basis of a year of 360 days for the actual number of days elapsed) shall accrue on the unpaid principal balance of this Note at the rate of four and one-quarter percent (4.25%) per annum. Commencing on November 15, 2003 and adjusting on the same day of each and every subsequent calendar month during the term of this Note (each such date shall be sometimes referred to herein as an "Adjustment Date"), interest shall accrue on the unpaid principal balance of this Note at a fixed rate equal to the lesser of (a) the greater of (i) the Prime Rate (as hereinafter defined) in effect on the most recent Adjustment Date or (ii) four and one-quarter percent (4.25%), or (b) the Maximum Lawful Rate. After maturity (whether by acceleration or otherwise) until paid, interest shall accrue on the matured principal and accrued, but unpaid, interest on this Note at a rate per annum equal to the Maximum Lawful Rate. The interest rate shall be adjusted concurrently with changes in the Prime Rate without notice to the Makers. As used in this Note, the term "Prime Rate," shall mean the rate described as the base rate on corporate loans posted by at least 75% of the nation's thirty (30) largest banks, quoted as "Prime Rate" under the title "Money Rates" in The Wall Street Journal issue published on or nearest to the most recent Adjustment Date. If on a pertinent Adjustment Date a range of rates is quoted for such loans, the highest of such rates shall be deemed the Prime Rate for purposes of this Note. In the event The Wall Street Journal ceases or fails to publish the Prime Rate for any reason, then the Payee may use any other index or reference rate the Payee chooses to determine the Prime Rate. The Prime Rate will automatically fluctuate upward and downward, without special notice to the Makers or any other person. THE PRIME RATE MAY NOT BE THE BEST OR LOWEST RATE OR A FAVORED RATE OF INTEREST, AND ANY REPRESENTATION OR WARRANTY IN THAT REGARD IS EXPRESSLY DISCLAIMED. As used herein, the term "Maximum Lawful Rate" shall mean the greater of (i) the highest non-usurious rate of interest permitted by applicable United States law, or (ii) a rate per annum equal to the applicable weekly ceiling described in Chapter 303 of the Texas Finance Code, as amended, as such weekly ceiling is in effect from time to time, but in no event greater than twenty-eight percent (28.00%) per annum. Unless precluded by law, changes in the Maximum Lawful Rate created by statute or governmental action during the term of this Note shall be immediately applicable to this Note on the effective date of such changes. If the applicable law ceases to provide for a Maximum Lawful Rate, the Maximum Lawful Rate shall be equal to eighteen percent (18%) per annum. Notwithstanding the foregoing, if, at any time, the rate of interest applicable to this Note (but for the limitation thereof to the Maximum Lawful Rate) exceeds the Maximum Lawful Rate, the rate of interest to accrue on this note shall be limited to the Maximum Lawful Rate, but any subsequent reductions in such rate of interest applicable to this Note (but for the limitation thereof to the Maximum Lawful Rate) shall not reduce the rate of interest to accrue on this Note below the Maximum Lawful Rate until the total amount of interest which would have accrued if a varying rate per annum equal to the rate of interest applicable to this Note (but for the limitation thereof to the Maximum Lawful Rate) had at all times been in effect. 2 PREPAYMENT: The Makers reserve the right to prepay this Note in any amount at any time prior to maturity without penalty. Interest shall be calculated on the unpaid principal to the date of any prepayment and any such prepayment shall be applied first toward the payment of accrued interest and next to the principal installments of this Note in the direct order of maturity. USE OF PROCEEDS: This Note represents funds advanced and to be advanced to the Makers at the Makers' special instance and request, the receipt of a portion of which is hereby acknowledged. Advances under this Note shall be made in accordance with a Loan Agreement dated of even date herewith between the Makers and the Payee. LIMITATION OF INTEREST: All agreements and transactions among the Makers and the Payee, whether now existing or hereafter arising, whether contained herein or in any other instrument, and whether written or oral, are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of acceleration of the maturity hereof, late payment, prepayment, or otherwise, shall the amount of interest contracted for, charged or received by the Payee from the Makers for the use, forbearance, or detention of the principal indebtedness or interest hereof, which remains unpaid from time to time, exceed the Maximum Lawful Rate, it particularly being the intention of the parties hereto to conform strictly to the applicable usury laws of the State of Texas (or applicable United States law to the extent that it permits the Payee to contract for, charge or receive a greater amount of interest than under Texas law). Any interest payable hereunder or under any other instrument relating to the indebtedness evidenced hereby that is in excess of the Maximum Lawful Rate, shall, in the event of acceleration of maturity, late payment, prepayment, or otherwise, be applied to a reduction of the unpaid indebtedness hereunder and not to the payment of interest, or if such excessive interest exceeds the unpaid balance of such unpaid indebtedness, such excess shall be refunded to the Makers. To the extent not prohibited by applicable law, determination of the Maximum Lawful Rate shall at all times be made by amortizing, prorating, allocating and spreading in equal parts during the full term of this loan, all interest at any time contracted for, charged or received from the Makers in connection with this loan, so that the actual rate of interest on account of such indebtedness is uniform throughout the term thereof. SUCCESSORS AND ASSIGNS: As used herein, the term "Payee" shall include the successors and assigns of the Payee and any subsequent owner and holder of this Note, and the term "Makers" shall include co-makers, endorsers, guarantors, sureties and their respective successors and assigns. 3 DEFAULT AND COLLECTION: It is expressly provided that, upon default in the punctual payment of this Note, or any part hereof, principal or interest, as the same shall become due and payable, or upon default in the performance of or compliance with any of the terms of any of the Collateral Agreements, or if the Payee deems the Payee insecure, either because the prospect of timely payment of this Note becomes impaired, or because the prospect of timely performance of any of the Collateral Agreements becomes impaired, at the option of the Payee, the entire indebtedness evidenced hereby shall be matured, and in the event default is made in the prompt payment of this Note when due or declared due, and the same is placed in the hands of an attorney for collection, or suit is brought on the same, or the same is collected through probate, bankruptcy or other judicial proceedings, then the Makers jointly and severally agree and promise to pay all reasonable attorney's fees, court costs and collection costs incurred by the Payee. WAIVERS AND CONSENTS: Each of the Makers waives presentment for payment, notice of intent to accelerate, notice of acceleration, protest and notice of protest, dishonor and diligence in collecting and the bringing of suit against any other party, and agrees to all renewals, extensions, partial payments, releases and substitutions of security, in whole or in part, with or without notice, before or after maturity. The Payee may remedy any default, without waiving the same, or may waive any default without waiving any prior or subsequent default. GOVERNING LAWS AND VENUE: This Note is governed by and is to be construed and enforced in accordance with the laws of the State of Texas and of the United States. The Makers agree and consent to the jurisdiction of the District Courts of Travis County, Texas, and of the United States District Court for the Western District of Texas (Austin Division) and acknowledge that such courts shall constitute proper and convenient forums for the resolution of any actions among the Makers and the Payee with respect to the subject matter hereof, and agree that such courts shall be the exclusive forums for the resolution of any actions among the Makers and the Payee with respect to the subject matter hereof. AMERICAN PHYSICIANS SERVICE GROUP, INC., a Texas corporation By: W.H. Hayes, Sr V.P. ------------------------------ Name:/s/ W. H. Hayes ------------------------------ Title:Sr. Vice President ------------------------------ EX-99 11 pc_note.txt REVOLVING PROMISSORY NOTE WITH PLAINSCAPITAL Exhibit 10.33 LOAN AGREEMENT THIS LOAN AGREEMENT (the "Agreement") is made and entered into as of October ____, 2003, by and between AMERICAN PHYSICIANS SERVICE GROUP, INC., a Texas corporation (the "Borrower") and PLAINSCAPITAL BANK, a Texas state bank (the "Lender"). W I T N E S S E T H : THAT, in consideration of the mutual covenants, agreements and undertakings herein contained, the parties hereto agree as follows: 1. Definitions: Unless a particular word or phrase is otherwise defined or the context otherwise requires, capitalized words and phrases used in Loan Documents have the meanings provided below (such meanings to be applicable to both the singular and plural forms of these words): Affiliate shall mean any Person controlling, controlled by, or under common control with any other Person. For purposes of this definition, "control" (including "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or otherwise. If any Person shall own, directly or indirectly, twenty percent (20%) or more of the indicia of equity rights (whether outstanding capital stock, partnership interests or otherwise) of another Person, such Person shall be deemed to be an Affiliate. Agreement shall mean this Loan Agreement. Chapter 303 shall mean Chapter 303 of the Texas Finance Code, as in effect on the date the document using such term was executed (unless otherwise provided in such document). Code shall mean the Internal Revenue Code of 1986, as amended, as now or hereafter in effect, together with all regulations, rulings and interpretations thereof or thereunder by the Internal Revenue Service. Debt to Worth Ratio shall mean the ratio of (a) total liabilities, less contributions in aid of construction, living unit equivalents and inter-company debt which is subordinated in payment to the Loan to (b) net worth, being total assets minus total liabilities, as determined in accordance with Generally Accepted Accounting Principles. 1 ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and all rules, regulations, rulings and interpretations adopted by the Internal Revenue Service or the Department of Labor thereunder. Event of Default shall mean any of the events specified as a default in any Loan Document, including without limitation any of the events described in Section 7.1 of this Agreement, provided there has been satisfied any requirement in connection with such event for the giving of notice, or the lapse of time, or the happening of any further condition, event or act, and Default shall mean any of such events, whether or not any such requirement has been satisfied. Generally Accepted Accounting Principles shall mean, as to a particular Person, such accounting practice as, in the opinion of the independent accountants of recognized national standing regularly retained by such Person and acceptable to the Lender, conforms at the time to Generally Accepted Accounting Principles, consistently applied. Generally Accepted Accounting Principles means those principles and practices (1) which are recognized as such by the Financial Accounting Standards Board, (2) which are applied for all periods after the date hereof in a manner consistent with the manner in which such principles and practices were applied to the most recent audited financial statements of the relevant Person furnished to the Lender, and (3) which are consistently applied for all periods after the date hereof so as to reflect properly the financial condition, and results of operations and changes in cash flow, of such Person. Any accounting terms used in this Agreement but not defined herein shall have the same meaning as promulgated by the Financial Accounting Standards Board. Highest Lawful Rate shall mean the maximum nonusurious rate of interest permitted to be charged, contracted for, received or collected by applicable federal or Texas law (whichever shall permit the higher lawful rate) from time to time in effect. At all times, if any, as Chapter 303 shall establish the Highest Lawful Rate, the Highest Lawful Rate shall be the "indicated rate ceiling" (as defined in Chapter 303) from time to time in effect. If the obligation is an open-end account, the Lender may from time to time, as to then-current and future balances, implement any other ceiling under Chapter 303 and/or revise the index, formula, or provision of law used to compute the rate on such obligation, if and to the extent permitted by, and in the manner provided in, Chapter 303. Indebtedness shall mean and include (1) all items which in accordance with Generally Accepted Accounting Principles would be included on the liability side of a balance sheet on the date as of which Indebtedness is to be determined (excluding capital stock, surplus, surplus reserves, and deferred credits), (2) all guaranties, endorsements, and other contingent obligations respecting any obligations to purchase or otherwise acquire, Indebtedness of others, (3) all Indebtedness secured by any Lien existing on any interest of the Person respecting which Indebtedness is being determined in Property owned subject to such Lien whether or not the Indebtedness secured thereby shall have been assumed, and (4) capital leases; provided, that such term shall not mean or include any Indebtedness in respect of which monies sufficient to pay and discharge the same in full (either on the expressed date of maturity thereof or 2 on such earlier date as such Indebtedness may be duly called for redemption and payment) have been deposited with a depository, agency, or trustee acceptable to the Lender in trust for the payment thereof. Investment shall mean the purchase or other acquisition of any securities or Indebtedness of, or the making of any loan, advance, transfer of Property, or capital contribution to, or the incurring of any liability, contingently or otherwise, respecting the Indebtedness of, any Person. Liquidity shall mean cash or marketable securities reasonably acceptable to the Lender that can be converted to cash within five (5) working days. Lien shall mean any mortgage, pledge, charge, encumbrance, security interest, collateral assignment, or other lien or restriction of any kind, whether based on common law, constitutional provision, statute, or contract, and shall include reservations, exceptions, encroachments, easements, rights of way, covenants, conditions, restrictions, leases, and other title exceptions. Loan shall mean all indebtedness for money borrowed from the Lender by the Borrower, together with all other liabilities of the Borrower under the Loan Documents, whether now existing or hereafter arising. Loan Documents shall mean this Agreement, the Note, all instruments, certificates, and agreements now or hereafter executed or delivered to the Lender pursuant to any of the foregoing, and all amendments, modifications, renewals, extensions, increases, and rearrangements of, and substitutions for, any of the foregoing. Note shall mean the Revolving Promissory Note described in Section 2.1 hereof. Parties shall mean all Persons other than the Lender executing any Loan Document. Permitted Investment Securities shall mean: (1) readily marketable securities issued or fully guaranteed by the United States of America; (2) commercial paper rated "Prime 1" by Moody's Investors Service, Inc., or A-1 by Standard and Poor's Borrower with maturities of not more than one hundred eighty (180) days; (3) mutual funds acceptable to the Lender; (4) certificates of deposit or repurchase contracts with financial institutions acceptable to the Lender on terms satisfactory to the Lender, all of the foregoing not having a maturity of more than one (1) year from the date of issuance thereof; and (5) readily marketable securities received in settlement of liabilities created in the ordinary course of business. Person shall mean any individual, business entity, trust, unincorporated organization, governmental authority, or any other form of entity. 3 Plan shall mean any plan subject to Title IV of ERISA and maintained for employees of the Borrower or of any member of a "controlled group of corporations", as such term is defined in the Code, of which the Borrower is a part, or any such plan to which the Borrower is required to contribute on behalf of its employees. Property shall mean any interest in any kind of property or asset, whether real, personal or mixed, tangible or intangible. Subsidiary shall mean, as to a particular parent business entity, any business entity of which fifty percent (50%) or more of the indicia of equity rights (whether outstanding capital stock or otherwise) is at the time directly or indirectly owned by such parent business entity, or by one or more of its Affiliates. 2. The Loan. 2.1 Description of the Loan. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties made by the Borrower, the Lender agrees to make available to the Borrower a $3,000,000.00 revolving line of credit, as evidenced by the Revolving Promissory Note (the "Note") in substantially the form attached hereto as Exhibit "A". The Loan is unsecured. 3. Conditions. 3.1 Funding. The obligation of the Lender to fund the proceeds of the Loan to the Borrower is subject to the receipt by the Lender of each of the following, in form and substance satisfactory to the Lender: (a) The Note; and (b) Appropriate certificates from the Borrower which evidence the authority of the officers and agents of the Borrower to execute the Loan Documents, together with copies of appropriate organizational documents for said entities. 4. Representations and Warranties. To induce the Lender to enter into this Agreement and to make the Loan, the Parties represent and warrant as follows: 4.1 Organization. The Borrower expressly represents and warrants to the Lender that it is a corporation duly organized and existing under the laws of the State of Texas; that it possesses full power and authority to own its property and to conduct its business as presently proposed to be conducted; that the execution and delivery of this Agreement and the Loan Documents and the performance of the obligations hereunder will not contravene any provisions of 4 its articles of incorporation; and that the president, vice president or other agent executing this Agreement and the Loan Documents is expressly authorized to execute this Agreement and the Loan Documents by resolution of the Board of Directors of the Borrower. 4.2 Financial Statements. The financial statements delivered to the Lender fairly present, in accordance with Generally Accepted Accounting Principles, the results of operations of the Borrower at the dates and for the periods indicated. No material adverse change has occurred in the Property, liabilities, and financial condition of, and no significant adverse change has occurred in the business or affairs of, the Borrower since the dates of such financial statements. The Borrower is not subject to any instrument or agreement materially and adversely affecting its financial condition, business, or affairs. 4.3 Enforceable Obligations; Authorization. The Loan Documents are legal, valid, and binding obligations of the Parties thereto, enforceable in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, and other similar laws affecting creditors' rights generally and by general equitable principles. The execution, delivery, and performance of the Loan Documents have all been duly authorized by all necessary action of the Parties. 4.4 Other Debt. None of the Parties are in default in the payment of any other Indebtedness or under any material agreement, mortgage, deed of trust, security agreement or lease. Except as previously disclosed in writing to the Lender, none of the Parties have any Indebtedness for borrowed money. 4.5 Litigation. Except as previously disclosed in writing to the Lender and for matters in which less than $100,000.00 are in controversy, there is no litigation or administrative proceeding pending or, to the knowledge of the Parties, threatened against, nor any outstanding judgment, order or decree affecting, the Parties or any of the Property owned by the Parties. 4.6 Title. The Borrower has good and marketable title to all of its assets, free and clear of any Lien except for property tax liens which are not delinquent and mechanics' liens which are not material or are bonded or otherwise secured to the reasonable satisfaction of the Lender. 4.7 Taxes. The Parties have filed all tax returns required to have been filed and paid all taxes due, except those for which extensions have been obtained and those which are being contested in good faith and for which reserves deemed adequate by the Lender have been established therefor. None of the Parties are aware of any pending investigation by any taxing authority which in the event of an adverse determination would have a material adverse impact upon the financial condition or the business prospects of the Parties. 4.8 ERISA. No reportable Event (as defined in Section 4043(b) of ERISA) has occurred with respect to any Plan. Each Plan complies with all applicable provisions of ERISA, and the Borrower has filed all reports required by ERISA and the Code to be filed with respect to each Plan. The Borrower has no 5 knowledge of any Event which could result in a liability of the Borrower to the Pension Benefit Guaranty Corporation. The Borrower has met all requirements with respect to funding any Plan proposed by ERISA or the Code. Since the effective date of Title IV of ERISA, there have not been any nor are there any Events or conditions now existing that would permit any Plan to be terminated under circumstances which would cause the lien provided under Section 4068 of ERISA to attach to any assets of the Borrower. The value of the Plan's benefits guaranteed under Title IV of ERISA on the date hereof does not exceed the value of such Plan's assets allocable to such benefits as of the date of this Agreement and shall not be permitted to do so hereafter. 4.9 Representations by Others. All written statements made by the Parties or in connection with any Loan Document shall constitute representations and warranties of the Parties hereunder. 4.10 Survival of Representations, Etc. All written representations and warranties made by the Parties shall survive the delivery of the Note to the Lender and the making of the Loan, and no investigation at any time made by or on behalf of the Lender shall diminish the Lender's rights to rely thereon. 5. Affirmative Covenants. The Parties covenant and agree with the Lender that prior to (a) the termination of this Agreement, (b) the payment in full of the Loan and (c) the termination of all obligations, if any, of the Lender to advance monies to or on behalf of the Borrower, the Parties will do, and if necessary cause to be done, each and all of the following: 5.1 Taxes, Existence, Regulations, Property, etc. At all times (a) pay when due all taxes and governmental charges of every kind upon the Parties or against the income, profits, or Property of the Parties, unless and only to the extent that the same shall be contested in good faith and reserves deemed adequate by the Lender have been established therefor; (b) do all things necessary to preserve the existence, qualifications, rights, and franchises of the Borrower in all states where such qualification is necessary or desirable; (c) comply with all applicable legal requirements in respect of the conduct of the business and the ownership of the Property of the Parties; and (d) cause the Property of the Parties to be protected, maintained, and kept in good repair and make all replacements and additions to the Property as may be reasonably necessary to conduct the business properly and efficiently. 5.2 Financial Statements and Information. Furnish, or cause to be furnished, to the Lender each of the following in form, substance and detail satisfactory to the Lender as soon as available and in any event within (a) ninety (90) days after the end of each fiscal year, a copy of the Borrower's Form 10-K statement for the most recent period, and (b) within forty-five (45) days of the end of each fiscal quarter, a copy of the Borrower's Form 10-Q statement for the most recent period. 6 5.3 Inspection. Permit the Lender and the Lender's designated agent to inspect the Borrower's assets, examine the Borrower's files, books and records and make and take away copies thereof, and discuss the Borrower's affairs with the Borrower's officers and accountants, all at such times and intervals and to such extent as the Lender may reasonably desire. The Lender shall not disclose any confidential information gained from any such inspection except to the Lender's directors, officers, employees, attorneys, accountants and regulators or as otherwise necessary in the Lender's ordinary course of business. 5.4 Further Assurances. Promptly execute and deliver any and all other and further instruments which may be reasonably requested by the Lender to cure any defect in the execution and delivery of any Loan Document or more fully to describe significant aspects of the Parties' agreements set forth in the Loan Documents or so intended to be. 5.5 Books and Records. Maintain books of record and account in accordance with Generally Accepted Accounting Principles. 5.6 Insurance. Maintain insurance with such insurers, on the Borrower's assets, in an amount equal to the full insurable value of such assets against such risks as are reasonably satisfactory to the Lender and furnish the Lender satisfactory evidence thereof promptly upon request. The Borrower shall cause the Lender to be named as a beneficiary and/or loss payee as to hazard insurance (as required by the Lender) of such insurance and shall provide the Lender with copies of the insurance certificate of the insured that the insurance required by this Section may not be non-renewed without thirty (30) days' prior written notice to the Lender. 5.7 Debt to Worth Ratio. Cause the Borrower to maintain at all times a Debt to Worth Ratio of not more than 2.0 to 1.0. 5.8 Liquidity. Cause the Borrower to maintain at all times a minimum of $5,000,000.00 in unencumbered Liquidity. 5.9 Pay Indebtedness. Pay, renew or extend the principal and interest on all material Indebtedness owed by the Borrower as the same shall become due and payable. 5.10 ERISA. At all times cause the Borrower to immediately upon acquiring knowledge of any Reportable Event (as defined in ss.4043(b) of ERISA) or of any "prohibited transaction", as such term is defined in the Code, in connection with the Plan, furnish the Lender a statement executed by the president or chief financial officer of the Borrower setting forth the details thereof and the action which the Borrower proposes to take with respect thereto and, when known, any action taken by the Internal Revenue Service or the Department of Labor with respect thereto. 7 5.11 Notice of Certain Matters. Notify the Lender immediately upon acquiring knowledge of the occurrence of any of the following: (a) the institution or threatened institution of any lawsuit or administrative proceedings affecting the Borrower excluding tort claims fully covered by insurance or litigation with an aggregate claim not in excess of $100,000.00; (b) the occurrence of any material adverse change in the assets, liabilities or financial condition of, or any significant adverse change has occurred in the business or affairs of, the Borrower; (c) the occurrence of any Event of Default or any Default. 6. Negative Covenants. The Parties covenant and agree with the Lender that prior to (i) the termination of this Agreement, (ii) the payment in full of the Loan and (iii) the termination of all obligations, if any, of the Lender to advance monies to or on behalf of the Borrower, or either of them, the Borrower will not, without the prior written consent of the Lender, do or allow to be done any of the following: 6.1 Mergers, Consolidations, and Dispositions and Acquisitions of Assets. In any single transaction or series of transactions with an aggregate value of greater than $500,000.00, directly or indirectly: (a) liquidate or dissolve; (b) be a party to any merger or consolidation; (c) sell, convey, or lease all or any substantial part of its Property, except for sale of inventory in the ordinary course of business; or (d) acquire all or substantially all of the Property of any Person. 6.2 Nature of Business; Management. Change the nature of its business or enter into any business which is substantially different from the business in which it is presently engaged or permit any substantial change in its executive management, which shall mean Kenneth S. Shifrin as Chairman and CEO or William H. Hayes as CFO, without the consent of the Lender, whose consent shall not be unreasonably withheld. 6.3 Books and Records. Change the method by which the Borrower maintains its books and records, except as required by Generally Accepted Accounting Principles. 7. EVENTS OF DEFAULT AND REMEDIES. 7.1 Events of Default. If any of the following events shall occur, then the Lender may do any or all of the following subject to the express notice and cure rights described in the Note: (1) declare the Loan to be immediately due and payable, together with all accrued interest thereon, without notice of any kind, notice of acceleration or of intention to accelerate, presentment and demand or protest, all of which are hereby expressly waived (except for the 8 express notice and cure rights described in the Note); (2) terminate all commitments to advance funds to the Borrower; (3) accelerate the maturity of the Loan to a date as early as the date of the notice; (4) exercise its rights of offset against each Account and all other Property of the Borrower in the possession of the Lender, which right is hereby granted by the Borrower to the Lender; and (5) exercise any and all other rights pursuant to the Loan Documents: (a) The Borrower fails to pay or prepay any principal of or interest on the Loan or any commitment fee or any other obligation hereunder when due; or (b) The Borrower (i) fails to pay at maturity, or within any applicable period of grace, any principal or interest on any other borrowed money obligation or if the holder of such other obligation declares, or may declare, such obligation due prior to its stated maturity because of a default thereunder; or shall fail to observe or perform any material term, covenant or agreement contained in any agreement or obligation by which the Borrower is bound, or (ii) is in default under or in violation of any agreement or obligation by which the Borrower is bound; or (c) Any representation or warranty made by the Parties herein or otherwise in connection with this Agreement proves to have been incorrect, false or misleading in any significant respect when made; or (d) The Parties violate any covenant, agreement, or condition contained in this Agreement or the other Loan Documents and such violation is not cured within the express notice and cure period described in the Note (or a cure commenced within such period and diligently pursued to completion where the cure reasonably required more than fifteen (15) days); or (e) A final and nonappealable judgment, or final and nonappealable judgments in the aggregate, for the payment of money in excess of $500,000.00 is rendered against the Borrower and the same shall remain undischarged for a period of thirty (30) days during which execution shall not be effectively stayed; or (f) The Borrower or any other Person claims, or any court finds or rules, that the Lender does not have a valid Lien as provided for herein on any material security which may have been provided by the Borrower, or such other Person; or (g) The Borrower sells, encumbers, or abandons (except as otherwise expressly permitted by the Loan Documents) any significant portion of the Property; or any levy, seizure or attachment is made thereof or thereon; or such Property is lost, stolen, substantially damaged or destroyed, and such loss or damage is not reimbursed by adequate insurance proceeds; or 9 (h) Any order is entered in any proceeding against the Borrower decreeing the dissolution, liquidation or split-up of the Borrower, and such order remains in effect for twenty (20) days; or (i) The Borrower makes an assignment for the benefit of creditors or becomes insolvent or fails generally to pay its debts as they become due, or petitions or applies to any tribunal for the appointment of a trustee, custodian, receiver, (or other similar official) of the Borrower or of all or any substantial part of the Property of the Borrower or commences a voluntary case or any other proceedings relating to the Borrower under any bankruptcy, reorganization, compromise arrangement, insolvency, readjustment of debt, dissolution, or liquidation or similar law (herein called the "bankruptcy law") of any jurisdiction; or (j) Any such petition or application is filed, or any such proceedings are commenced, against the Borrower and the Borrower by any act or omission indicates its approval, consent, or acquiescence, or an order for relief is entered in an involuntary case under the federal bankruptcy laws as now or hereafter constituted, or an order, judgment or decree is entered appointing any such trustee, custodian, receiver, liquidator, or similar official or adjudicating the Borrower bankrupt or insolvent, or approving the petition in any such proceedings, and such order, judgment, or decree remains in effect for twenty (20) days; or (k) A material adverse change occurs in the Property, liabilities or financial condition of, or any significant adverse change in the business or affairs of, the Parties (or any of them); or (l) The Parties conceal, remove, or permit to be concealed or removed, any part of their Property, with intent to hinder, delay or defraud their creditors or any of them, or makes or suffers a transfer of any of their Property which may be fraudulent under any bankruptcy, fraudulent conveyance or similar law; or shall have made any transfer of their Property to or for the benefit of a creditor at a time when other creditors similarly situated have not been paid. 7.2 Other Remedies. In addition to and cumulative of any rights or remedies provided for in this Agreement or any of the other Loan Documents, upon the occurrence of any of the events described in Section 7.1 hereof, the Lender may at any time proceed to protect and enforce its rights hereunder, by any appropriate proceedings, as the Lender may elect. The Lender may also proceed either by the specific performance of any covenant or agreement contained in this Agreement or the other Loan Documents or to enforce the payment of the Loan or to enforce any other legal or equitable right provided under this Agreement or the other Loan Documents, or otherwise existing under any law in favor of the holders of Indebtedness. 10 7.3 Remedies Cumulative. No remedy, right or power of the Lender is intended to be exclusive of any other remedy, right or power, and each and every remedy, right and power shall be cumulative and in addition to every other remedy, right and power given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. 8. Miscellaneous. 8.1 No Waiver. No failure to exercise and no delay on the part of the Lender in exercising any power or right in connection herewith or under any other Loan Document shall operate as a waiver, nor shall any single or partial exercise of any such right or power, preclude any other or further exercise thereof or the exercise of any other right or power. No course of dealing between the Borrower and the Lender shall operate as a waiver of any right of the Lender. No modification or waiver of any provision of this Agreement or any other Loan Document shall be effective unless the same shall be in writing and signed by the Person against whom enforcement thereof is to be sought. 8.2 Governing Law. Unless otherwise specified therein, each Loan Document shall be governed by and construed in accordance with the laws of the State of Texas and The United States of America. The Parties hereby irrevocably agree that any legal proceeding against the Lender arising out of or in connection with this Agreement or the other Loan Documents shall be brought in the District Courts of Travis County, Texas, or in the United States District Court for the Western District of Texas, Austin Division. 8.3 Usury Not Intended; Refund of Any Excess Payments. It is the intent of the Parties in the execution and performance of this Agreement to contract in strict compliance with the usury laws of the State of Texas and The United States of America from time to time in effect. In furtherance thereof, the Lender and the Parties stipulate and agree that none of the terms and provisions contained in this Agreement or the other Loan Documents shall ever be construed to create a contract to pay for the use, forbearance, or detention of money with interest at a rate in excess of the Highest Lawful Rate and that for purposes hereof "interest" shall include the aggregate of all charges which constitute interest under such laws that are contracted for, reserved, taken, charged, or received under this Agreement. In determining whether or not the interest paid or payable, under any specific contingency, exceeds the Highest Lawful Rate, the Parties and the Lender shall, to the maximum extent permitted under applicable law, (a) treat all advances as but a single extension of credit (and the Parties and the Lender agree that such is the case and that provision herein for multiple advances is for convenience only), (b) characterize any nonprincipal payment as an expense, fee, or premium rather than as interest, (c) exclude voluntary prepayments and the effects thereof, and (d) "spread" the total amount of interest throughout the entire contemplated term of the Loan. The provisions of this paragraph shall control over all other provisions of the Loan Documents which may be in apparent conflict herewith. 11 8.4 Expenses. Any provision to the contrary notwithstanding, and whether or not the transactions contemplated by this Agreement shall be consummated, the Parties shall pay on demand all reasonable out-of-pocket expenses (including, without limitation, the fees and expenses of counsel for the Lender) in connection with the negotiation, preparation, execution, filing, recording, refiling, re-recording, modification, supplementing, and waiver of the Loan Documents and the making and collection of the Loan. The obligations of the Parties under this and the following section shall survive the termination of this Agreement and/or the payment of the Loan. 8.5 Indemnification. The Borrower agrees to indemnify, defend, and hold the Lender harmless from and against any and all loss, liability, obligation, damage, penalty, judgment, claim, deficiency, and expense (including interest, penalties, attorneys' fees, and amounts paid in settlement) to which the Lender may become subject arising out of or based upon the Loan Documents or the Loan, excluding those to the extent caused by the Lender's own acts or omissions. 8.6 Entire Agreement. This Agreement and the Loan Documents embody the entire Agreement and understanding between the Parties and the Lender relating to the subject matter hereof and supersedes all prior proposals, negotiations, agreements, and understandings relating to such subject matter. The Parties certify that they are not relying on any representation, warranty, covenant, or agreement except for those set forth in this Agreement and the other Loan Documents. All written representations made by the Parties to the Lender respecting the subject matter hereof shall survive the execution of this Agreement. 8.7 Severability. If any provision of any Loan Document shall be invalid, illegal, or unenforceable in any respect under any applicable law, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby. 8.8 Loan Agreement Controls. If there are any conflicts or inconsistencies among this Agreement and any of the other Loan Documents, this Agreement shall prevail and control. 8.9 Commitment. The Lender has no commitment to lend sums to the Borrower other than as specifically set forth herein. 8.10 Notices. All notices, demands and requests made under any provision of this Agreement shall be in writing and shall be deemed to have been properly delivered as of the time of delivery if personally delivered, the date of receipt or refusal indicated on the return receipt, if sent by United States certified mail, return receipt requested, and postage prepaid, or one (1) business day after the time of delivery to Federal Express (or comparable express delivery system) if sent by such method with all costs prepaid. All notices, demands and requests shall be addressed to the Lender at 2705 Bee Caves Rd. Suite 120, Austin, Texas 78746, Attention: Mr. Jon Levy, and to the Borrower at 1031 Capital of Texas Highway, Austin, Texas 78746, Attention: William H. Hays, or to such other address that either the Lender or the Borrower may designate to the other by written notice sent in the manner required hereby. 12 8.11 Sale or Assignment. The Lender reserves the right, in its sole discretion, without notice to the Borrower, or any of the other Parties, to sell participations or assign its interest, or both, in all or any part of the Loan evidenced by this Agreement, or the other Loan Documents. No such sale or assignment shall relieve the Lender of any obligation of the Lender under the Loan Documents PLAINSCAPITAL BANK, a Texas state bank By: Jonathan D. Levy Name: /s/ Jonathan D. Levy Title:Executive Vice PResident AMERICAN PHYSICIANS SERVICES GROUP, INC., a Texas corporation By: William H. Hayes Name: /s/ William H, Hayes Title:Sr. Vice President ATTACHMENTS: Exhibit A - Note -----END PRIVACY-ENHANCED MESSAGE-----