1
As filed with the Securities and Exchange Commission on March 2, 2001
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN PHYSICIANS CAPITAL, INC.
(Exact name of Registrant as Specified in Its Charter)
Michigan 38-3543910
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1301 North Hagadorn Road
East Lansing, Michigan 48823
(Address of Principal Executive Offices) (Zip Code)
American Physicians Capital, Inc. Stock Compensation Plan
(Full Title of the Plan)
William B. Cheeseman
President and Chief Executive Officer
American Physicians Capital, Inc.
1301 North Hagadorn Road
East Lansing, Michigan 48832
(Name and Address of Agent for Service)
Telephone Number, Including Area Code, of Agent for Service: (517) 351-1150
Copy to:
Mark A. Metz, Esq.
Dykema Gossett PLLC
400 Renaissance Center
Detroit, Michigan 48243-1668
(313) 568-5434
CALCULATION OF REGISTRATION FEE
================================================================================
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount To Be Offering Price Per Aggregate Offering Amount of
to be Registered Registered Share Price Registration Fee
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Common Stock 1,200,000 shares** $17.625 * $21,150,000.00 * $5,288.00 *
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
*Estimated solely for purposes of computing the registration fee, at $17.625 per
share, the average price for shares of the Common Stock on February 26, 2001, as
reported on the Nasdaq Stock Market, pursuant to Rule 457(h).
**The number of shares may be adjusted to prevent dilution from stock splits,
stock dividends and similar transactions. The Registration Statement shall cover
any such additional shares in accordance with Rule 416(a).
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by American Physicians Capital, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference in this Registration Statement:
(a) The Company's final Prospectus dated and filed December 8,
2000, as part of the Company's Post-Effective Amendment to its
Registration Statement (File No. 333-41136); and
(b) The description of the Company's Common Stock, set forth under
the caption "Description of Securities" in the Company's
Registration Statement on Form S-1 (File No. 333-41136) which
is incorporated by reference in the Company's Registration
Statement on Form 8-A (File No. 000-32057) filed with the
Commission on December 5, 2000, including any amendment or
report filed for the purpose of updating such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in the
registration statement and to be part thereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Michigan Business Corporation Act
The Company is organized under the Michigan Business Corporation Act
(the "MBCA") which, in general, empowers Michigan corporations to indemnify a
person who was or is a party or is threatened to be made a party to a
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal, other
than an action by or in the right of the corporation, by reason of the fact that
such person is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
partner, trustee, employee or agent of another enterprise, against expenses,
including attorney's fees, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred in connection therewith if the
person acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the corporation or its shareholders and, with
respect to a criminal action or proceeding, if the person had no reasonable
cause to believe his or her conduct was unlawful.
The MBCA also empowers Michigan corporations to provide similar
indemnity to such a person for expenses, including attorney's fees, and amounts
paid in settlement actually and reasonably incurred by the person in connection
with actions or suits by or in the right of the corporation if the person acted
in good faith and in a manner the person reasonably believed to be in or not
opposed to the interests of the corporation or its shareholders, except in
respect of any claim, issue or matter in which the person has been found liable
to the corporation, unless the court determines that the person is fairly and
reasonably entitled to indemnification in view of all relevant circumstances, in
which case indemnification is limited to reasonable expenses incurred. If a
person is successful in defending against a derivative action or third-party
action, the MBCA requires that a Michigan corporation indemnify the person
against expenses incurred in the action.
II-1
3
The MBCA also permits a Michigan corporation to purchase and maintain
on behalf of such a person insurance against liabilities incurred in such
capacities.
The MBCA further permits Michigan corporations to limit the personal
liability of directors for a breach of their fiduciary duty. However, the MBCA
does not eliminate or limit the liability of a director for any of the
following: (i) the amount of a financial benefit received by a director to which
he or she is not entitled; (ii) intentional infliction of harm on the
corporation or the shareholders; (iii) a violation of Section 551 of the MBCA;
or (iv) an intentional criminal act.
Bylaws and Articles of Incorporation of the Company
The Bylaws of the Company require it to reimburse its directors and
officers to the fullest extent permitted by law for expenses, judgments,
penalties, fines and settlements in connection with legal proceedings to which
the director or officer is a party due to their service in any capacity at the
Company's request. If the legal proceeding is brought by the Company or on its
behalf, the Company's reimbursement obligation is limited to expenses and
settlements. In either case, the director or officer must be found to have acted
in good faith and in a manner he/she believed to be in the Company's and its
shareholders' best interest or not opposed to the Company's or its shareholders'
best interest. If the proceeding is a criminal proceeding, the Company must
reimburse the director or officer only if he/she had no reasonable cause to
believe his/her conduct was unlawful.
As permitted by law, the Articles of Incorporation of the Company
generally limit the personal liability of its directors to the Company and its
shareholders for breach of their fiduciary duty. The Articles of Incorporation,
however, do not eliminate or limit the liability of a director for any of the
following:
- the amount of a financial benefit received by a director to which he
or she is not entitled;
- intentional infliction of harm on the corporation or its
shareholders;
- a violation of Section 551 of the Michigan Business Corporation Act
relating to improper distributions; or
- an intentional criminal act.
As a result of this provision, shareholders of the Company may be
unable to recover damages against directors for actions taken by them which
constitute negligence or gross negligence or which are in violation of their
fiduciary duties, although it may be possible to obtain an injunction with
respect to such actions. The Company has been advised that, in the opinion of
the Securities and Exchange Commission, indemnification for liabilities arising
under the Securities Act of 1933 is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed with this Registration Statement:
5.1 Opinion of Dykema Gossett PLLC
10.1 American Physicians Capital, Inc. Stock Compensation Plan
II-2
4
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Dykema Gossett PLLC (contained in Exhibit 5.1)
24 Power of Attorney (see "Signatures")
Item 9. Undertakings.
(1) The undersigned registrant hereby undertakes to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement: (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any
facts or events arising after the effective date of this registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
this registration statement; (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
registration statement or any material change to such information in this
registration statement; provided, however, that paragraphs (1)(i) and (1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
(2) The undersigned registrant hereby undertakes that, for the purpose
of determining any liability under the Securities Act of 1933, each
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) The undersigned registrant hereby undertakes to remove from
registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
(4) The undersigned registrant hereby undertakes that, for the purpose
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) or the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of East Lansing, State of Michigan, on February 28,
2001.
AMERICAN PHYSICIANS CAPITAL, INC.
By: /s/ William B. Cheeseman
--------------------------------------
William B. Cheeseman
President and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned whose signature appears below hereby
constitutes and appoints William B. Cheeseman and Frank H. Freund and each of
them acting alone, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, under the Securities Act of 1933.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on February 28, 2001.
Title
/s/ William B. Cheeseman President, Chief Executive Officer and Director
- ------------------------ (Principal Executive Officer)
William B. Cheeseman
/s/ Frank H. Freund Vice President, Treasurer and Chief Financial Officer
- ------------------------ (Principal Financial and Accounting Officer)
Frank H. Freund
/s/ Billy Ben Baumann Director
- ------------------------
Billy Ben Baumann, M.D.
/s/ Thomas R. Berglund Director and Chairman of the Board
- ------------------------
Thomas R. Berglund, M.D.
/s/ Myron R. Emerick Director
- ------------------------
Myron R. Emerick, D.O.
/s/ AppaRao Mukkamala Director
- ------------------------
AppaRao Mukkamala, M.D.
II-4
6
/s/ Lloyd A. Schwartz Director
- ------------------------
Lloyd A. Schwartz
II-5
7
INDEX TO EXHIBITS
Exhibit
Number Description
5.1 Opinion of Dykema Gossett PLLC (including consent)
10.1 American Physicians Capital, Inc. Stock Compensation Plan
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Dykema Gossett PLLC (contained in Exhibit 5.1)
24 Power of Attorney (see "Signatures")