As filed with the Securities and Exchange Commission on December 21, 2001
Registration No. 333-
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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 Assurance Corporation 401(k) 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
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- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Title of Securities Amount To Be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share Price
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Common Stock 250,000 shares** $21.175* $5,293,750* $1,265.21*
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
*Estimated solely for purposes of computing the registration fee, at $21.175 per
share, the average price for shares of the Common Stock on December 17, 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). This registration
statement also covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
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 Annual Report on Form 10-K for the year ended
December 31, 2000;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2001, June 30, 2001 and September 30, 2001;
(c) The Plan's Annual Report on Form 11-K for the year ended
December 31, 2000; and
(d) 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, filed under the Securities
Exchange Act of 1934, as amended.
All documents filed by the Company and the Plan with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, subsequent to the date of this Registration Statement and
prior to the termination of the offering of the Common Stock covered by this
Registration Statement shall be deemed to be incorporated herein by reference
and to be a part hereof from the respective date of filing of each such
document.
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.
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, as amended, 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 The Plan is intended to be qualified under the Internal
Revenue Code, Section 401(k). The registrant will submit
the Plan to the Internal Revenue Service ("IRS") in a timely
manner and will make all changes required by the IRS in order
to qualify the Plan.
23 Consent of PricewaterhouseCoopers LLP
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, as amended; (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, as amended, 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, as amended, 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, as amended, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, (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, as amended) 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, as amended, 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 December 6,
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, as
amended, and confirming all that each such attorney-in-fact or his or her
substitute may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on December 6, 2001.
<Caption>
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.
<Table>
/s/ AppaRao Mukkamala Director
- -------------------------------
AppaRao Mukkamala, M.D.
</Table>
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Plan 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 December 6, 2001.
AMERICAN PHYSICIANS ASSURANCE
CORPORATION 401(K) PLAN
By: /s/ Margo C. Runkle
-----------------------------
Its: Plan Administrator
INDEX TO EXHIBITS
Exhibit
Number Description
23 Consent of PricewaterhouseCoopers LLP, independent accountants.