-----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, FDOURZ6jl+LUv8QbkuRUrwvFPiofJ7BvGZYrS1hxB2gpe/hPwybRW5PLMyLbqWAF fMLHKHyf+sLx+XbkNyS4JA== 0000892917-04-000291.txt : 20041112 0000892917-04-000291.hdr.sgml : 20041111 20041112144352 ACCESSION NUMBER: 0000892917-04-000291 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20041112 DATE AS OF CHANGE: 20041112 GROUP MEMBERS: JOHN STILWELL GROUP MEMBERS: JOSEPH STILWELL GROUP MEMBERS: SPENCER L. SCHNEIDER GROUP MEMBERS: STILWELL ASSOCIATES, L.P. GROUP MEMBERS: STILWELL PARTNERS, L.P. GROUP MEMBERS: STILWELL VALUE LLC GROUP MEMBERS: STILWELL VALUE PARTNERS II, L.P. GROUP MEMBERS: STILWELL VALUE PARTNERS V, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN PHYSICIANS CAPITAL INC CENTRAL INDEX KEY: 0001118148 STANDARD INDUSTRIAL CLASSIFICATION: HOSPITAL & MEDICAL SERVICE PLANS [6324] IRS NUMBER: 383543910 STATE OF INCORPORATION: MI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-59999 FILM NUMBER: 041138474 BUSINESS ADDRESS: STREET 1: 1301 NORTH HAGADORN ROAD CITY: EAST LANSING STATE: MI ZIP: 48823 BUSINESS PHONE: 5173511150 MAIL ADDRESS: STREET 1: 1301 NORTH HAGADORN ROAD CITY: EAST LANSING STATE: MI ZIP: 48823 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: STILWELL JOSEPH CENTRAL INDEX KEY: 0001113303 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 26 BROADWAY 23RD FLOOR CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2122695800 MAIL ADDRESS: STREET 1: 26 BROADWAY 23RD FLOOR CITY: NEW YORK STATE: NY ZIP: 10004 SC 13D/A 1 stil13d-a1104.txt - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 1 of 31 - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 5) AMERICAN PHYSICIANS CAPITAL, INC. (Name of Issuer) COMMON STOCK (Title of Class of Securities) 028884104 (CUSIP Number) Mr. Joseph Stilwell 26 Broadway, 23rd Floor New York, New York 10004 Telephone: (212) 269-5800 with a copy to: Mary Ann Frantz, Esq. Miller Nash LLP 3400 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, Oregon 97204-3699 Telephone: (503) 224-5858 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) November 10, 2004 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 2 of 31 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). - -------------------------------------------------------------------------------- Stilwell Value Partners II, L.P. - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) - -------------------------------------------------------------------------------- (a) [X] - -------------------------------------------------------------------------------- (b) - -------------------------------------------------------------------------------- 3. SEC Use Only .................................................................... - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) WC, OO - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization: Delaware - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power: 0 Shares -------------------------------------------------------------- Beneficially 8. Shared Voting Power: 703,200 Owned by -------------------------------------------------------------- Each 9. Sole Dispositive Power: 0 Reporting -------------------------------------------------------------- Person With 10. Shared Dispositive Power: 703,200 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 703,200 - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 8.2% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) PN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 3 of 31 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). - -------------------------------------------------------------------------------- Stilwell Value Partners V, L.P. - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) - -------------------------------------------------------------------------------- (a) [X] - -------------------------------------------------------------------------------- (b) - -------------------------------------------------------------------------------- 3. SEC Use Only .................................................................... - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) WC, OO - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization: Delaware - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power: 0 Shares -------------------------------------------------------------- Beneficially 8. Shared Voting Power: 703,200 Owned by -------------------------------------------------------------- Each 9. Sole Dispositive Power: 0 Reporting -------------------------------------------------------------- Person With 10. Shared Dispositive Power: 703,200 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 703,200 - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 8.2% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) PN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 4 of 31 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). - -------------------------------------------------------------------------------- Stilwell Associates, L.P. - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) - -------------------------------------------------------------------------------- (a) [X] - -------------------------------------------------------------------------------- (b) - -------------------------------------------------------------------------------- 3. SEC Use Only .................................................................... - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) WC, OO - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization: Delaware - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power: 0 Shares -------------------------------------------------------------- Beneficially 8. Shared Voting Power: 703,200 Owned by -------------------------------------------------------------- Each 9. Sole Dispositive Power: 0 Reporting -------------------------------------------------------------- Person With 10. Shared Dispositive Power: 703,200 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 703,200 - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 8.2% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) PN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 5 of 31 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). - -------------------------------------------------------------------------------- Stilwell Partners, L.P. - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) - -------------------------------------------------------------------------------- (a) [X] - -------------------------------------------------------------------------------- (b) - -------------------------------------------------------------------------------- 3. SEC Use Only .................................................................... - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) WC, OO - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization: Delaware - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power: 0 Shares -------------------------------------------------------------- Beneficially 8. Shared Voting Power: 703,200 Owned by -------------------------------------------------------------- Each 9. Sole Dispositive Power: 0 Reporting -------------------------------------------------------------- Person With 10. Shared Dispositive Power: 703,200 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 703,200 - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 8.2% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) PN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 6 of 31 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). - -------------------------------------------------------------------------------- Stilwell Value LLC - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) - -------------------------------------------------------------------------------- (a) [X] - -------------------------------------------------------------------------------- (b) - -------------------------------------------------------------------------------- 3. SEC Use Only .................................................................... - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) WC, OO - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization: Delaware - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power: 0 Shares -------------------------------------------------------------- Beneficially 8. Shared Voting Power: 703,200 Owned by -------------------------------------------------------------- Each 9. Sole Dispositive Power: 0 Reporting -------------------------------------------------------------- Person With 10. Shared Dispositive Power: 703,200 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 703,200 - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 8.2% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) OO - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 7 of 31 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). - -------------------------------------------------------------------------------- Joseph Stilwell - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) - -------------------------------------------------------------------------------- (a) [X] - -------------------------------------------------------------------------------- (b) - -------------------------------------------------------------------------------- 3. SEC Use Only .................................................................... - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) PF, OO - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization: United States - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power: 0 Shares -------------------------------------------------------------- Beneficially 8. Shared Voting Power: 703,200 Owned by -------------------------------------------------------------- Each 9. Sole Dispositive Power: 0 Reporting -------------------------------------------------------------- Person With 10. Shared Dispositive Power: 703,200 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 703,200 - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 8.2% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) IN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 8 of 31 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). - -------------------------------------------------------------------------------- Spencer L. Schneider - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) - -------------------------------------------------------------------------------- (a) [X] - -------------------------------------------------------------------------------- (b) - -------------------------------------------------------------------------------- 3. SEC Use Only .................................................................... - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) PF, OO - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization: United States - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power: 580 Shares -------------------------------------------------------------- Beneficially 8. Shared Voting Power: 30,000 Owned by -------------------------------------------------------------- Each 9. Sole Dispositive Power: 580 Reporting -------------------------------------------------------------- Person With 10. Shared Dispositive Power: 30,000 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 30,580 - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 0.4% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) IN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 9 of 31 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). - -------------------------------------------------------------------------------- John Stilwell - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) - -------------------------------------------------------------------------------- (a) [X] - -------------------------------------------------------------------------------- (b) - -------------------------------------------------------------------------------- 3. SEC Use Only .................................................................... - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) PF - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization: United States - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power: 2,200 Shares -------------------------------------------------------------- Beneficially 8. Shared Voting Power: 0 Owned by -------------------------------------------------------------- Each 9. Sole Dispositive Power: 2,200 Reporting -------------------------------------------------------------- Person With 10. Shared Dispositive Power: 0 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 2,200 - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): .03% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) IN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 10 of 31 - -------------------------------------------------------------------------------- Item 1. Security and Issuer This is the fifth amendment (this "Fifth Amendment") to the original Schedule 13D, which was filed on November 25, 2002 (the "Original Schedule 13D"), amended on July 30, 2004 (the "First Amendment"), amended on August 6, 2004 (the "Second Amendment"), amended on August 20, 2004 (the "Third Amendment"), and amended on October 6, 2004 (the "Fourth Amendment"). The Fifth Amendment is filed jointly by Stilwell Value Partners II, L.P., a Delaware limited partnership ("Stilwell Value Partners II"); Stilwell Value Partners V, L.P., a Delaware limited partnership ("Stilwell Value Partners V"); Stilwell Associates, L.P., a Delaware limited partnership ("Stilwell Associates"); Stilwell Partners, L.P., a Delaware limited partnership ("Stilwell Partners"); Stilwell Value LLC, a Delaware limited liability company ("Stilwell Value LLC") and the general partner of Stilwell Value Partners II, Stilwell Value Partners V and Stilwell Associates; Joseph Stilwell, managing and sole member of Stilwell Value LLC and the general partner of Stilwell Partners; Spencer L. Schneider; and John Stilwell. All of the filers of this statement are collectively referred to as the "Group". This statement relates to the common stock ("Common Stock") of American Physicians Capital, Inc. ("Issuer" or "ACAP"). The address of the principal executive offices of the Issuer is 1301 North Hagadorn Road, East Lansing, Michigan 48823. The joint filing agreement of the members of the Group is attached to the Original Schedule 13D as Exhibit 1. A copy of the Power of Attorney given by Mr. Schneider to Joseph Stilwell is attached to the Original Schedule 13D as Exhibit 2. The amended joint filing agreement of the members of the Group is attached to the Second Amendment as Exhibit 5. A copy of the Power of Attorney given by John Stilwell to Joseph Stilwell is attached to the Second Amendment as Exhibit 6. Item 2. Identity and Background (a)-(c) This statement is filed by Joseph Stilwell, with respect to the shares of Common Stock beneficially owned by Joseph Stilwell, including shares of Common Stock held in the names of Stilwell Value Partners II, Stilwell Value Partners V, Stilwell Associates and Stilwell Partners, in Joseph Stilwell's capacity as the general partner of Stilwell Partners and as the managing and sole member of Stilwell Value LLC which is the general partner of Stilwell Value Partners II, Stilwell Value Partners V and Stilwell Associates. The business address of Stilwell Value Partners II, Stilwell Value Partners V, Stilwell Associates, Stilwell Partners, Stilwell Value LLC and Joseph Stilwell is 26 Broadway, 23rd Floor, New York, New York 10004. The principal employment of Joseph Stilwell is investment management. Stilwell Value Partners II, Stilwell Value Partners V, Stilwell Associates and Stilwell Partners are private investment partnerships engaged in the purchase and sale of securities for their own accounts. Stilwell Value LLC is in the business of serving as the general partner of Stilwell Value Partners II, Stilwell Value Partners V and Stilwell Associates. This statement is also filed by Spencer L. Schneider with respect to the shares of Common Stock beneficially owned by him and with respect to options to purchase shares of - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 11 of 31 - -------------------------------------------------------------------------------- Common Stock. Mr. Schneider's business address is 70 Lafayette Street, New York, New York 10013. Mr. Schneider is an attorney engaged in the private practice of law. This statement is also filed by John Stilwell with respect to the shares of Common Stock beneficially owned by him. John Stilwell's business address is 26 Broadway, 23rd Floor, New York, New York 10004. John Stilwell is employed by Stilwell Partners as an analyst. John Stilwell and Joseph Stilwell are brothers. (d) During the past five years, no member of the Group has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the past five years, no member of the Group has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as a result of such proceeding, was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or finding any violation with respect to such laws. (f) Joseph Stilwell, Mr. Schneider and John Stilwell are citizens of the United States. Item 3. Source and Amount of Funds or Other Consideration No member of the Group has purchased any shares of Common Stock since the filing of the Fourth Amendment. Item 4. Purpose of Transaction The purpose of the acquisition of shares of Common Stock of the Issuer by members of the Group is to profit from the appreciation in the market price of the shares of Common Stock through the assertion of shareholder rights. To the extent that such conduct is not inconsistent with any of the terms of the standstill agreement referred to below (the "2004 Standstill Agreement"), or with any applicable laws or regulations, members of the Group may assert shareholder rights in the future with the intent to influence the policies of the Issuer. The members of the Group do not believe the value of the Issuer's assets is adequately reflected in the current market price of the Issuer's Common Stock. Members of the Group are filing this Fifth Amendment to report, as further described below, that (a) Joseph Stilwell has joined the Issuer's Board of Directors as the Group's second director, and (b) members of the Group and the Issuer have entered into the 2004 Standstill Agreement which replaces the original standstill agreement that was set to terminate on February 20, 2005. On December 14, 2001, certain members of the Group filed a petition with the Michigan Office of Financial and Insurance Services ("OFIS") seeking permission, under the Michigan Insurance Code, to solicit proxies to elect two persons to the Board of Directors of the Issuer. By letter dated January 18, 2002, OFIS Commissioner Frank M. Fitzgerald, finding the petition "persuasive on the merits," approved the petition, granting members of the Group the authority - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 12 of 31 - -------------------------------------------------------------------------------- to solicit proxies without further authorization from OFIS. On January 29, 2002, Stilwell Associates noticed its intent to nominate Spencer L. Schneider and Kevin D. Padrick as directors to fill the two seats expiring at the 2002 annual shareholders meeting. On February 20, 2002, the Issuer and members of the Group entered into the original standstill agreement whereby, among other things, the Issuer expanded its Board from six to seven seats and invited Mr. Schneider to fill that seat. Additionally, the Issuer's Board agreed to promptly consider using its capital to repurchase 15% of the Issuer's outstanding shares for each of 2002 and 2003. In exchange, the Group agreed, among other things, to support the Issuer's slate of directors at the 2002 annual shareholders meeting and at all annual shareholders meetings during the three-year term of the original standstill agreement. A copy of the original standstill agreement as amended in October 2002, is attached to the Original Schedule 13D as Exhibit 3. On May 8, 2002, at the Issuer's annual shareholders meeting, Mr. Schneider was elected to a three-year term. Since the filing of the Original Schedule 13D: (a) on November 6, 2003, the Issuer announced a reserve charge and that it would explore its options to maximize shareholder value -- it subsequently announced it had retained Sandler O'Neill & Partners, L.P. to assist the Board in this regard; (b) on November 6, 2003, the Issuer also announced that it would exit from the healthcare and workers compensation businesses; (c) on December 2, 2003, the Issuer announced that its President and Chief Executive Officer, William Cheeseman, would take early retirement on December 31, 2003; (d) on December 23, 2003, the Issuer named R. Kevin Clinton as its new President and Chief Executive Officer; and (e) on June 24, 2004, the Issuer announced that, after a diligent and thorough review and examination, the Board determined that the best means to maximize shareholder value is to continue to execute the Issuer's current business strategy of shedding non-core businesses and focusing on its core business line in its core markets. On July 28, 2004, the Board extended its waiver of the limitation contained in the original standstill agreement, which otherwise prohibited members of the Group from holding or purchasing more than 5% of the outstanding shares of Common Stock. On November 10, 2004, Joseph Stilwell joined the Board of Directors of the Issuer as the Group's second director. In addition, members of the Group and the Issuer entered into the 2004 Standstill Agreement, which replaces the original standstill agreement that was set to expire on February 20, 2005. Under the 2004 Standstill Agreement, Joseph Stilwell becomes a director, Mr. Schneider will continue as a director and the Issuer will nominate both men for three-year terms on the Board at the 2005 annual shareholders meeting. In exchange, members of the Group agreed, among other things, to support the Issuer's slate of directors at the 2005 annual shareholders meeting and during the term of the 2004 Standstill Agreement. A copy of the 2004 Standstill Agreement is attached as Exhibit 8. So long as not inconsistent with the terms of the 2004 Standstill Agreement, members of the Group reserve their rights to exercise other of their shareholder rights. Such reserved rights include, in the future, without limitation, the rights to: (a) communicate and discuss their views with other shareholders, including discussions concerning the election of directors to the Board and ways to maximize shareholder value; and/or (b) solicit proxies or written consents from other shareholders of the Issuer with respect to additional Board representation or other - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 13 of 31 - -------------------------------------------------------------------------------- proposals for shareholder action. Members of the Group may seek to make additional purchases of shares of Common Stock. Except as noted in this Fifth Amendment, no member of the Group has any plans or proposals which relate to, or could result in, any of the matters referred to in paragraphs (a) through (j), inclusive, of Item 4 of Schedule 13D. So long as not inconsistent with the terms of the 2004 Standstill Agreement, members of the Group may, at any time and from time to time, review or reconsider their positions and formulate plans or proposals with respect thereto. On May 1, 2000, certain members of the Group (the "Stilwell SPN Group") filed a Schedule 13D in connection with the common stock of Security of Pennsylvania Financial Corp. ("SPN"). Thereafter, the Stilwell SPN Group communicated with management of SPN and scheduled a meeting with senior management in order to discuss maximizing short and long-term value of SPN's assets. On June 2, 2000, prior to the scheduled meeting, SPN and Northeast Pennsylvania Financial Corp. announced the signing of a definitive agreement under which Northeast Pennsylvania Financial Corp. agreed to acquire SPN and the Stilwell SPN Group disposed of its shares of SPN on the open market. On July 7, 2000, certain members of the Group (the "Stilwell CMRN Group") filed a Schedule 13D in connection with the common stock of Cameron Financial Corporation ("Cameron"). Thereafter the Stilwell CMRN Group exercised its shareholder rights by, among other things, requesting that Cameron management hire an investment banker, demanding Cameron's list of shareholders, meeting with Cameron's management, demanding that Cameron invite the Stilwell CMRN Group's representatives to join the Board, writing to other Cameron shareholders to express their dismay with management's inability to maximize shareholder value and publishing that letter in the local press. On October 6, 2000, Cameron announced that it had entered into an agreement to be acquired by Dickinson Financial Corp. and the Stilwell CMRN Group disposed of its shares of Cameron on the open market. On January 4, 2001, certain members of the Group (the "Stilwell CFIC Group") filed a Schedule 13D in connection with the common stock of Community Financial Corp. ("CFIC"). The Stilwell CFIC Group reported that it acquired the stock of CFIC for investment purposes after CFIC announced the sale of two of its four subsidiary banks and its intention to sell one or more of its remaining subsidiaries. On January 25, 2001, CFIC announced the sale of one of its remaining subsidiaries. The Stilwell CFIC Group then announced its intention to run an alternate slate of directors at the 2001 annual meeting if CFIC did not sell the remaining subsidiary by then. On March 27, 2001, members of the Stilwell CFIC Group wrote to CFIC confirming that CFIC had agreed to meet with one of the Stilwell CFIC Group's proposed nominees to the Board. On March 30, 2001, before the meeting took place, CFIC announced that it had agreed to be merged with First Financial Corporation. The Stilwell CFIC Group, having accomplished its purpose of maximizing shareholder value, announced that it would not seek representation on the Board or solicit proxies for use at the annual meeting. On February 23, 2001, certain members of the Group (the "Stilwell MONT Group") filed a Schedule 13D in connection with the common stock of Montgomery Financial Corporation ("Montgomery"). In its Schedule 13D, the Stilwell MONT Group stated that it acquired the - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 14 of 31 - -------------------------------------------------------------------------------- stock of Montgomery for investment purposes and that it believed the value of Montgomery's assets exceeded its current market price. On April 20, 2001, members of the Stilwell MONT Group met with Montgomery's management, suggested to management that it should maximize shareholder value by selling the institution and notified management that it would run an alternate slate of directors at the 2001 annual meeting unless Montgomery entered into a transaction. Eleven days after the Schedule 13D was filed, Montgomery's Board amended its bylaws to require that nominees to its Board must: (a) reside locally, (b) have a loan or deposit relationship with Montgomery's subsidiary bank for at least twelve months prior to nomination, (c) have served as a member of a local civic or community organization for at least twelve months during the five years prior to the nomination to the Board, and (d) own 100 shares of Montgomery's stock. Additionally, the amended bylaws shortened the time for shareholders to notice their intention to nominate alternate directors at the 2001 annual meeting. On June 5, 2001, Montgomery announced that it had hired an investment banking firm, to "help evaluate available alternatives to improve financial performance and maximize shareholder value. . . . [including] a potential acquisition or merger." On June 13, 2001, the Stilwell MONT Group timely noticed its intention to nominate to Montgomery's Board two persons who qualified under the amended bylaws. On July 24, 2001, Montgomery announced that it signed a definitive agreement with Union Community Bancorp ("Union") providing for the merger of Montgomery into Union. On June 14, 2001, certain members of the Group (the "Stilwell HCBB Group") filed a Schedule 13D in connection with the common stock of HCB Bancshares, Inc. ("HCBB"). On or about September 4, 2001, the Stilwell HCBB Group reported that it had entered into a standstill agreement with HCBB whereby, among other things, HCBB would appoint a director selected by the Stilwell HCBB Group. HCBB also agreed to consider conducting a Dutch tender auction. Additionally, HCBB agreed to adopt annual financial targets. HCBB also agreed that if it did not achieve the financial targets, it would retain an investment banking firm to help it to explore available alternatives to maximizing shareholder value. On October 22, 2001, the Stilwell HCBB Group reported that HCBB had named its nominee, John G. Rich, Esq., as a director. On January 31, 2002, HCBB announced a modified Dutch tender auction to repurchase 20% of its shares. Subsequent to the standstill agreement, HCBB announced and completed a number of 5% share repurchase programs, and, between the filing of the Stilwell HCBB Group's Schedule 13D and up until August 31, 2003, HCBB's outstanding share count decreased by 33%. HCBB did not achieve the financial target enumerated in the standstill agreement for the fiscal year ended June 30, 2003. Pursuant to the terms of the standstill agreement, on August 12, 2003, HCBB announced that it retained Gerrish & McCreary PC (a regional investment banking firm) to assist HCBB in exploring available alternatives for maximizing shareholder value, including a sale of HCBB. On January 14, 2004, HCBB announced that it had agreed to be acquired by Rock Bancshares Inc., and having accomplished its objective of maximizing shareholder value, the Stilwell HCBB Group disposed of its shares of HCBB on the open market. On December 15, 2000, certain members of the Group (the "Stilwell OTFC Group") filed a Schedule 13D in connection with the common stock of Oregon Trail Financial Corp. ("OTFC"). In January 2001, members of the Stilwell OTFC Group met with the management of OTFC to discuss its concerns that management was not maximizing shareholder value and it proposed that OTFC voluntarily place its nominees on the Board. OTFC rejected the Stilwell - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 15 of 31 - -------------------------------------------------------------------------------- OTFC Group's proposal, and the Stilwell OTFC Group immediately announced its intention to solicit proxies to elect a Board nominee. OTFC refused to produce its complete shareholder list to the Stilwell OTFC Group and it sued OTFC in Baker County, Oregon. The court ultimately ordered OTFC to produce the complete list and to pay $10,000 in attorneys' fees to the Stilwell OTFC Group. The Stilwell OTFC Group also initiated lawsuits against two OTFC directors alleging that one director had allegedly violated OTFC's residency requirement and that the other director had allegedly committed perjury while testifying about his co-director in the first suit. Both suits were dismissed pre-trial but the Stilwell OTFC Group filed an appeal in one suit and was permitted to re-file the other suit in state court. On or about August 16, 2001, the Stilwell OTFC Group began to solicit proxies from shareholders to elect Kevin D. Padrick, Esq. to the Board of OTFC. On September 12, 2001, OTFC filed suit against the Manhattan-based Stilwell OTFC Group in Portland, Oregon's federal district court and moved to invalidate the Stilwell OTFC Group's proxies, but the court denied the motion and the election proceeded. During the election, OTFC announced the hiring of an investment banking firm. The Stilwell OTFC Group argued in its proxy materials that OTFC should have used its excess capital to repurchase its shares at prices below book value. In the five months after the filing of the Stilwell OTFC Group's first proxy statement (i.e., from August 1, 2001 though December 31, 2001), OTFC repurchased approximately 15% of its shares. On October 12, 2001, at OTFC's Annual Meeting, OTFC's shareholders elected the Stilwell OTFC Group's candidate to the Board by a 2-1 margin. On March 12, 2002, OTFC and members of the Stilwell OTFC Group entered into a standstill agreement pursuant to which, among other things, OTFC agreed to achieve annual targets for its return on equity, to reduce its current capital ratio, to obtain advice from its investment banker regarding annual 10% stock repurchases, to re-elect the Stilwell OTFC Group's director to the Board at the end of his current term, to maintain a seat for the Stilwell OTFC Group's director, or a replacement director, for five years, to reimburse a portion of the Stilwell OTFC Group's expenses incurred in the proxy contest, and to withdraw, with prejudice, the pending lawsuit against members of the Stilwell OTFC Group. In exchange, members of the Stilwell OTFC Group agreed, among other things, to refrain from seeking additional seats on OTFC's Board and to support OTFC. On or about February 24, 2003, OTFC and FirstBank NW Corp. ("FBNW") announced the signing of a definitive agreement whereby OTFC and FBNW would be merged, and the Stilwell OTFC Group subsequently announced that, having accomplished its objective of maximizing shareholder value, it had disposed of substantially all of its shares on the open market. On June 30, 2003, certain members of the Group (the "Stilwell FPIC Group") filed a Schedule 13D in connection with the common stock of FPIC Insurance Group, Inc. ("FPIC"). On August 12, 2003, the Florida Office of Insurance Regulation approved the Stilwell FPIC Group's application to acquire more than 5% of FPIC's shares of common stock and to hold board seats and exercise its shareholder rights. On November 10, 2003, pursuant to the Group's request to FPIC, the Group's nominee, John G. Rich, Esq., became a director of FPIC. In connection with Mr. Rich's appointment to the Board, the Issuer and members of the Group entered into a confidentiality agreement. On March 29, 2004, certain members of the Group (the "Stilwell COMB Group") filed a Schedule 13D in connection with the common stock of Community Bancshares, Inc. ("COMB"). - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 16 of 31 - -------------------------------------------------------------------------------- The Stilwell COMB Group reported that it intended to meet with COMB's management to discuss the steps that management planned to take to address the challenges confronting COMB and that if the Stilwell COMB Group believes management is dealing effectively with such challenges, it would likely support current management. The Stilwell COMB Group reserved its right to exercise its shareholders rights to maximize the value of COMB's shares, which it does not believe adequately reflects the value of COMB's assets. Item 5. Interest in Securities of the Issuer The percentages used in this Fifth Amendment are calculated based upon the number of outstanding shares of Common Stock, 8,615,361, reported as the number of outstanding shares as of October 29, 2004, in the Issuer's quarterly report on Form 10-Q for the period ended September 30, 2004. All purchases and sales of shares of Common Stock reported herein, other than through the exercise of options, were made in open market transactions on The Nasdaq Stock Market. (A) Stilwell Value Partners II (a) Aggregate number of shares beneficially owned: 703,200 Percentage: 8.2% (b) 1. Sole power to vote or to direct vote: 0 2. Shared power to vote or to direct vote: 703,200 3. Sole power to dispose or to direct the disposition: 0 4. Shared power to dispose or to direct disposition: 703,200 (c) Stilwell Value Partners II has not engaged in any transactions in shares of Common Stock since the filing of the Third Amendment. (d) Because he is the managing and sole member of Stilwell Value LLC, which is the general partner of Stilwell Value Partners II, Joseph Stilwell has the power to direct the affairs of Stilwell Value Partners II, including the voting and disposition of shares of Common Stock held in the name of Stilwell Value Partners II. Therefore, Joseph Stilwell is deemed to share voting and disposition power with Stilwell Value Partners II with regard to those shares of Common Stock. (B) Stilwell Value Partners V (a) Aggregate number of shares beneficially owned: 703,200 Percentage: 8.2% (b) 1. Sole power to vote or to direct vote: 0 2. Shared power to vote or to direct vote: 703,200 3. Sole power to dispose or to direct the disposition: 0 4. Shared power to dispose or to direct disposition: 703,200 (c) Stilwell Value Partners V has not engaged in any transactions in shares of Common Stock since the filing of the Fourth Amendment. (d) Because he is the managing and sole member of Stilwell Value LLC, which is the general partner of Stilwell Value Partners V, Joseph Stilwell has the power to direct the affairs of - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 17 of 31 - -------------------------------------------------------------------------------- Stilwell Value Partners V, including the voting and disposition of shares of Common Stock held in the name of Stilwell Value Partners V. Therefore, Joseph Stilwell is deemed to share voting and disposition power with Stilwell Value Partners V with regard to those shares of Common Stock. (C) Stilwell Associates (a) Aggregate number of shares beneficially owned: 703,200 Percentage: 8.2% (b) 1. Sole power to vote or to direct vote: 0 2. Shared power to vote or to direct vote: 703,200 3. Sole power to dispose or to direct the disposition: 0 4. Shared power to dispose or to direct disposition: 703,200 (c) Stilwell Associates has not engaged in any transactions in shares of Common Stock since the filing of the Third Amendment. (d) Because he is the managing and sole member of Stilwell Value LLC, which is the general partner of Stilwell Associates, Joseph Stilwell has the power to direct the affairs of Stilwell Associates, including the voting and disposition of shares of Common Stock held in the name of Stilwell Associates. Therefore, Joseph Stilwell is deemed to share voting and disposition power with Stilwell Associates with regard to those shares of Common Stock. (D) Stilwell Partners (a) Aggregate number of shares beneficially owned: 703,200 Percentage: 8.2% (b) 1. Sole power to vote or to direct vote: 0 2. Shared power to vote or to direct vote: 703,200 3. Sole power to dispose or to direct the disposition: 0 4. Shared power to dispose or to direct disposition: 703,200 (c) Stilwell Partners has not engaged in any transactions in shares of Common Stock since the filing of the Third Amendment. (d) Because he is the general partner of Stilwell Partners, Joseph Stilwell has the power to direct the affairs of Stilwell Partners, including the voting and disposition of shares of Common Stock held in the name of Stilwell Partners. Therefore, Joseph Stilwell is deemed to share voting and disposition power with Stilwell Partners with regard to those shares of Common Stock. (E) Stilwell Value LLC (a) Aggregate number of shares beneficially owned: 703,200 Percentage: 8.2% (b) 1. Sole power to vote or to direct vote: 0 2. Shared power to vote or to direct vote: 703,200 3. Sole power to dispose or to direct the disposition: 0 4. Shared power to dispose or to direct disposition: 703,200 (c) Stilwell Value LLC has made no purchases of shares of Common Stock. - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 18 of 31 - -------------------------------------------------------------------------------- (d) Because he is the managing and sole member of Stilwell Value LLC, Joseph Stilwell has the power to direct the affairs of Stilwell Value LLC. Stilwell Value LLC is the general partner of Stilwell Value Partners II, Stilwell Value Partners V and Stilwell Associates. Therefore, Stilwell Value LLC may be deemed to share with Joseph Stilwell voting and disposition power with regard to the shares of Common Stock held by Stilwell Value Partners II, Stilwell Value Partners V and Stilwell Associates. (F) Joseph Stilwell (a) Aggregate number of shares beneficially owned: 703,200 Percentage: 8.2% (b) 1. Sole power to vote or to direct vote: 0 2. Shared power to vote or to direct vote: 703,200 3. Sole power to dispose or to direct the disposition: 0 4. Shared power to dispose or to direct disposition: 703,200 (c) Joseph Stilwell has not engaged in any transactions in shares of Common Stock since the filing of the Third Amendment. (G) Spencer L. Schneider (a) Aggregate number of shares beneficially owned: 30,580 Percentage: 0.4% (b) 1. Sole power to vote or to direct vote: 580 2. Shared power to vote or to direct vote: 30,000 3. Sole power to dispose or to direct the disposition: 580 4. Shared power to dispose or to direct disposition: 30,000 (c) Mr. Schneider has not engaged in any transactions in shares of Common Stock since the filing of the Third Amendment. (H) John Stilwell (a) Aggregate number of shares beneficially owned: 2,200 Percentage: 0.03% (b) 1. Sole power to vote or to direct vote: 2,200 2. Shared power to vote or to direct vote: 0 3. Sole power to dispose or to direct the disposition: 2,200 4. Shared power to dispose or to direct disposition: 0 (c) John Stilwell has not engaged in any transactions of Common Stock since the filing of the Second Amendment. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Other than the Amended Joint Filing Agreement filed as Exhibit 5 to the Second Amendment, the agreement with Mr. Schneider filed as Exhibit 4 to the Original Schedule 13D, the agreement filed as Exhibit 7 to the Second Amendment, and as otherwise described below and in Item 4 above regarding the 2004 Standstill Agreement filed as Exhibit 8 to this Fifth - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 19 of 31 - -------------------------------------------------------------------------------- Amendment, there are no contracts, arrangements, understandings or relationships among the persons named in Item 2 hereof and between such persons and any person with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finders' fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, divisions of profits or losses, or the giving or withholding of proxies, except for sharing of profits. Stilwell Value LLC and Joseph Stilwell, in their capacities, respectively, as general partner of Stilwell Value Partners II, Stilwell Value Partners V and Stilwell Associates, and managing and sole member of Stilwell Value LLC and general partner of Stilwell Partners, as described in this Fifth Amendment, are entitled to an allocation of a portion of profits. Stilwell Value Partners II and Stilwell Value Partners V have agreed to indemnify Mr. Schneider for all costs and expenses arising out of or related to his nomination for election as a director of the Issuer. Stilwell Value Partners II and Stilwell Value Partners V have issued Mr. Schneider options to purchase 30,000 shares of Common Stock. See Items 1 and 2 above regarding disclosure of the relationships between members of the Group, which disclosure is incorporated herein by reference. Item 7. Material to be filed as Exhibits Exhibit No. Description -- ----------- 1 Joint Filing Agreement* 2 Powers of Attorney* 3 Standstill Agreement* 4 Agreements with Mr. Schneider and Mr. Padrick* 5 Amended Joint Filing Agreement** 6 Power of Attorney of John Stilwell** 7 Amended Nominee Agreement** 8 2004 Standstill Agreement *Filed with Original Schedule 13D filed November 25, 2002 ** Filed with the Second Amendment on August 6, 2004 - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 20 of 31 - -------------------------------------------------------------------------------- SIGNATURES After reasonable inquiry and to the best of our knowledge and belief, we certify that the information set forth in this statement is true, complete and correct. Date: November 11, 2004 STILWELL VALUE PARTNERS II, L.P. By: STILWELL VALUE LLC General Partner /s/ Joseph Stilwell -------------------------------------- By: Joseph Stilwell Managing and Sole Member STILWELL VALUE PARTNERS V, L.P. By: STILWELL VALUE LLC General Partner /s/ Joseph Stilwell -------------------------------------- By: Joseph Stilwell Managing and Sole Member STILWELL ASSOCIATES, L.P. By: STILWELL VALUE LLC General Partner /s/ Joseph Stilwell -------------------------------------- By: Joseph Stilwell Managing and Sole Member STILWELL PARTNERS, L.P. /s/ Joseph Stilwell -------------------------------------- By: Joseph Stilwell General Partner STILWELL VALUE LLC /s/ Joseph Stilwell -------------------------------------- By: Joseph Stilwell Managing and Sole Member - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 21 of 31 - -------------------------------------------------------------------------------- JOSEPH STILWELL /s/ Joseph Stilwell -------------------------------------- Joseph Stilwell SPENCER L. SCHNEIDER /s/ Spencer L. Schneider -------------------------------------- Spencer L. Schneider JOHN STILWELL /s/ John Stilwell -------------------------------------- John Stilwell EX-99 2 stil13da1104ex.txt EX. 8 - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 22 of 31 - -------------------------------------------------------------------------------- EXHIBIT 8 2004 Standstill Agreement THIS STANDSTILL AGREEMENT ("Agreement"), dated the 10th day of November, 2004 ("Effective Date"), is made by and between American Physicians Capital, Inc., a Michigan corporation ("ACAP"), on the one hand, and Stilwell Value Partners II, L.P., Stilwell Value Partners V, L.P., Stilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value, LLC, Joseph Stilwell, John Stilwell and Spencer L. Schneider (collectively, the "Stilwell Group") on the other. WHEREAS, ACAP and certain members of the Stilwell Group are parties to a Standstill Agreement, dated February 20, 2002, as amended (the "Original Standstill Agreement"), which expires on February 20, 2005; and WHEREAS, ACAP and the Stilwell Group have agreed that it is in their mutual interests to enter into this Agreement as hereinafter described. NOW, THEREFORE, in consideration of the premises and the representations, warranties, and agreements contained herein, and other good and valuable consideration, the parties hereto mutually agree as follows: 1. Representations and Warranties of Stilwell Group. The Stilwell Group hereby represents and warrants to ACAP as follows: a. The Stilwell Group has beneficial ownership of 705,980 shares of common stock of ACAP and has full and complete authority to enter into this Agreement and to bind the entire number of shares of the common stock of ACAP which it holds, or may hold, including any shares purchased in the future, to the terms of this Agreement. This Agreement constitutes a valid and binding agreement of the Stilwell Group. No "affiliate" or "associate" (as such terms are defined in the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of the Stilwell Group beneficially owns any shares or rights to acquire shares of common stock of ACAP. b. There are no arrangements, agreements or understandings between the Stilwell Group and ACAP other than as set forth in this Agreement. 2. Representations and Warranties of ACAP. ACAP hereby represents and warrants to the Stilwell Group, as follows: a. ACAP has full power and authority to enter into and perform its obligations under this Agreement, and the execution and delivery of this Agreement by ACAP has been duly authorized by the Board of Directors of ACAP and requires no further Board of Directors or stockholder action. The Board of Directors of ACAP may be referred to hereinafter as the "Board". This Agreement constitutes a valid and binding obligation of ACAP and the performance of its terms does not constitute a violation of its articles of incorporation or by-laws. 3. Stilwell Group's Prohibited Conduct. Until the termination of this - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 23 of 31 - -------------------------------------------------------------------------------- Agreement, no member of the Stilwell Group or any of their affiliates or associates, shall, directly or indirectly, a. solicit (as such term is used in the proxy rules of the Securities and Exchange Commission) proxies or consents, or participate in any manner in the solicitation of proxies or consents, from ACAP's stockholders to elect persons to the Board of Directors or to approve shareholder proposals, b. make any public statement critical of ACAP, its Directors or management, c. initiate any litigation against ACAP or any of its Directors or officers, except to enforce the terms of this Agreement, d. make or be the proponent of any shareholder proposal, whether pursuant to Rule 14a-8 of the Exchange Act or otherwise, e. acquire, offer or propose to acquire, or agree to acquire (except, in any case, by way of stock dividends or other distributions or offerings made available to holders of ACAP common stock generally), directly or indirectly, or retain ownership of any ACAP common stock, if when taken together with the ACAP common stock beneficially owned by the Stilwell Group would constitute more than 9.9% of the then outstanding shares of ACAP; provided that "beneficial ownership" shall have the meaning ascribed thereto under Section 13(d) of the Exchange Act, f. make any public announcement with respect to any proposal or offer involving, or propose to enter into, or assist or encourage any other person with respect to, directly or indirectly, any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets, sale or purchase of securities, dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving ACAP, or to propose as a Director any of the foregoing types of transactions, provided, however, that nothing herein shall directly or indirectly prohibit any member of the Stilwell Group from proposing any transaction listed above which does not result in a "change of control" of ACAP as defined in ACAP's Stock Compensation Plan as it exists as of the Effective Date. g. form, join or in any way participate in any "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to ACAP common stock, h. deposit any ACAP common stock in any voting trust or subject any ACAP common stock to any arrangement or agreement with respect to the voting of any ACAP common stock, i. execute any written consent as shareholders with respect to ACAP or its common stock, except as set forth herein, j. otherwise act, alone or in concert with others, to control or seek to control or influence or seek to influence the stockholders, management, the Board or policies of ACAP, - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 24 of 31 - -------------------------------------------------------------------------------- other than through non-public communications with the directors of ACAP; provided, that, subject to clause (f) above, nothing herein shall limit Joseph Stilwell or Spencer Schneider from acting in their capacities as directors of ACAP in accordance with their fiduciary duties at any meeting of the Board of Directors, including their ability to discuss and vote upon the items in clause (f) above, k. seek, alone or in concert with others, (i) to call a meeting of shareholders, (ii) representation on the Board of ACAP or its subsidiaries, except as set forth herein, or (iii) the removal of any member of the ACAP Board or any of its subsidiaries, l. make any publicly disclosed proposal regarding any of the foregoing, m. publicly make any request to amend, waive or terminate any provision of this Agreement, or n. take, or cause others to take, any action inconsistent with any of the foregoing. 4. Voting at Meetings of Stockholders. At all meetings of stockholders the Stilwell Group shall vote all of the shares of ACAP common stock beneficially owned by its members for each of ACAP's nominees for election to the ACAP Board of Directors, for the ratification of the appointment of ACAP's independent auditors and, in other matters, in accordance with the recommendation of the ACAP Board of Directors, or, if so directed by the Board, pro rata with all other shareholders. 5. Directorships and Committees. ACAP agrees that upon the execution of the Agreement, Joseph Stilwell ("Stilwell") will be appointed to the Board of Directors of ACAP. a. Stilwell will be appointed to the Class of Directors of ACAP whose terms expire at the 2005 Annual Meeting of Stockholders, and be appointed to the compensation and investment committees. Spencer Schneider ("Schneider"), who was appointed to the Board pursuant to the Original Standstill Agreement, shall continue as a director pursuant to the terms set forth herein. b. ACAP agrees to make all necessary amendments to its by-laws and/or articles of incorporation to enable Stilwell to sit on the Board, including to expand the Board. c. Stilwell and Schneider will be entitled to receive the identical compensation and benefits being paid to the other non-employee directors of ACAP. d. No member of the Stilwell Group shall accept any incentive or compensation that would influence any member of the Stilwell Group to recommend that ACAP enter into a transaction for the sale of ACAP or to recommend any other significant initiative affecting ACAP and its shareholders. For purposes of this subparagraph 5(c), neither an increase in the value of the Stilwell Group's holdings in ACAP shares nor any fees earned by Stilwell in connection with managing his limited partnerships shall constitute an incentive or compensation hereunder. - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 25 of 31 - -------------------------------------------------------------------------------- e. ACAP and its Board agree to nominate and support Stilwell and Schneider for re-election to the Board of ACAP at the 2005 annual shareholders meeting each for a term that expires at the 2008 annual shareholders meeting. Schneider shall remain a member of the audit and governance committees during the rest of his current term and in his next term, and Stilwell shall remain a member of the compensation and investment committees in his next term. f. If at any time during the term of this Agreement the Stilwell Group's beneficial ownership of ACAP common stock becomes less than five percent of the outstanding shares of ACAP common stock, then the Stilwell Group shall, within five business days thereafter, give notice of such change in ownership to ACAP and, if requested by the Board of ACAP following a majority vote of the directors other than Stilwell and Schneider, either Stilwell or Schneider (at Stilwell's discretion) shall immediately tender his resignation from the Board of ACAP and all committees of the Board, which resignation shall be effective upon receipt by ACAP. Such resignation shall state that it is being tendered pursuant to the terms hereof and not as a result of any disagreement with the Board or management of ACAP. Notwithstanding the foregoing, the Stilwell Group's obligations under this subparagraph 5(f) shall not be triggered if it becomes the beneficial owner of less than five percent of the outstanding common stock of ACAP as the result of an issuance of common stock by ACAP which, by increasing the number of shares outstanding, decreases the proportionate number of shares beneficially owned by the Stilwell Group; provided, however, that if the Stilwell Group shall become the beneficial owner of less than five percent of the common stock of ACAP then outstanding by reason of a share issuance by ACAP and shall, after such share issuance by ACAP, sell or dispose of a proportionate amount of ACAP common stock that would have otherwise lowered his percentage ownership of ACAP to less than 5% of the number of shares of common stock of ACAP outstanding as of the Effective Date, then the Stilwell Group's obligations under this subparagraph 5(f) shall be triggered. 6. Litigation. ACAP will not, directly or indirectly, initiate any litigation against the Stilwell Group, except to enforce the terms of this Agreement. 7. Dispositions. The Stilwell Group agrees that any disposition of shares of common stock of ACAP will be made in open market transactions in a manner designed to effect an orderly disposition of such shares. The Stilwell Group further agrees that it will not transfer or dispose of any shares of ACAP common stock if, as a result of such disposition or transfer, to the knowledge of any member of the Stilwell Group, the person making such acquisition will beneficially own, together with its affiliates and any member of a "group" (within the meaning of the Exchange Act) in which such acquiror is a party, immediately following such acquisition, 5% or more of the ACAP common stock then outstanding. 8. Certification of Ownership. The Stilwell Group shall, upon request of ACAP, certify to ACAP as to the amount of shares it beneficially owns. 9. Termination. - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 26 of 31 - -------------------------------------------------------------------------------- a. This Agreement shall terminate and Stilwell and Schneider shall immediately tender their resignations from the Board of ACAP, if requested by the Board of ACAP as a result of a majority vote of the directors other than Stilwell and Schneider in favor of such resignation by the Board of ACAP, upon the earlier of (i) the Stilwell Group having beneficial ownership of less than one percent of the outstanding shares of common stock of ACAP; (ii) any person becoming the beneficial owner of more than 50% of ACAP's voting stock, including any merger, acquisition or other type of business combination, (iii) the dissolution, merger or any other transaction which results in the failure of Stilwell Value Partners II, L.P., Stilwell Value Partners V, L.P., Stilwell Associates, L.P., Stilwell Partners, L.P. or Stilwell Value LLC to exist as legal entities; provided that at the option of ACAP, this Agreement shall be binding on their respective successors and it shall be a condition of such dissolution or other transaction that such successor so agree, (iv) the death or incapacity of Joseph Stilwell; or (v) the third anniversary of the Effective Date. b. The Stilwell Group shall have the right to terminate this Agreement at any time upon at least 15 days' prior written notice of such termination along with written notice of the resignation of Stilwell and Schneider from the Board of ACAP as of the date of termination (the "Termination and Resignation Notice"). During such 15-day period, the parties hereto shall discuss and address the proposed termination and Stilwell's and Schneider's intention to resign. If the Termination and Resignation Notice is not withdrawn by Stilwell and Schneider on or before the effective date thereof (which shall not be less than 15 days after delivery to ACAP), this Agreement shall terminate and Stilwell and Schneider shall no longer be members of the ACAP Board (or any committee thereof). c. The Stilwell Group hereby forever waives and releases, and covenants not to sue, any of ACAP's current Directors or current Officers, for any claim or cause of action based on any act, omission, or failure to act by ACAP's current Directors or current Officers, which occurs prior or subsequent to the Effective Date, however, this waiver and release and covenant not to sue does not include the right to sue to enforce the terms of this Agreement and does not extend to acts which are criminal. The Stilwell Group is not aware of the existence of any claims it currently possesses against ACAP. The Stilwell Group also agrees that no member of the Stilwell Group will make any public statement which directly or indirectly impugns the character, integrity or personal reputation of any of ACAP's current Directors. The provisions of this sub-paragraph 9(c) shall survive the termination of the Agreement. 10. Public Announcement. The parties shall promptly disclose the existence of this Agreement after its execution pursuant to a joint press release in a form reasonably satisfactory to Stilwell and Schneider: however, neither party shall disclose the existence of this Agreement until the press release is issued. 11. Material Nonpublic Information. In connection with this Agreement and the Stilwell Group's ongoing relationship with ACAP, there may be instances in which material - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 27 of 31 - -------------------------------------------------------------------------------- nonpublic information concerning ACAP will be divulged to members of the Stilwell Group who are not at that time members of the ACAP Board by ACAP, Stilwell, Schneider or other ACAP representatives or agents. The Stilwell Group expressly acknowledges that federal and state securities laws prohibit any person who misappropriates material nonpublic information about a company from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Stilwell Group further acknowledges that Stilwell and Schneider will be subject to ACAP's insider trading and disclosure policies, as in effect from time to time, at any time while they are on the Board to the same extent as the other directors of ACAP. To the extent SEC Regulation FD may apply, in accordance with Section 243.100 (2)(ii) of Regulation FD, the Stilwell Group expressly agrees to maintain material nonpublic information concerning ACAP in confidence. 12. Remedies. ACAP and the Stilwell Group acknowledge and agree that a breach or threatened breach by either party may give rise to irreparable injury inadequately compensable in damages, and accordingly each party shall be entitled to injunctive relief to prevent a breach of the provisions hereof and to enforce specifically the terms and provisions hereof in any state or federal court having jurisdiction, in addition to any other remedy to which such aggrieved party may be entitled to at law or in equity. In the event either party institutes any legal action to enforce such party's rights under, or recover damages for breach of, this Agreement, the prevailing party or parties in such action shall be entitled to recover from the other party or parties all costs and expenses, including but not limited to reasonable attorneys' fees, court costs, witness fees, disbursements and any other expenses of litigation or negotiation incurred by such prevailing party or parties. 13. Notices. All notice requirements and other communications shall be deemed given when delivered or on the following business day after being sent by overnight courier with a nationally recognized courier service such as Federal Express, addressed to the Stilwell Group and ACAP as follows: ACAP: Mr. R. Kevin Clinton 1301 North Hagadorn Road East Lansing, Michigan 48823 With a copy to: Lori A. McAllister, Esq. Dykema Gossett PLLC 124 W. Allegan 800 Michigan National Tower Lansing, Michigan 48933 The Stilwell Group: Mr. Joseph Stilwell 26 Broadway, 23rd Floor New York, New York 10004 - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 28 of 31 - -------------------------------------------------------------------------------- With a copy to: Joseph Fink, Esq. Dickinson Wright PLLC 215 South Washington Square, Suite 200 Lansing, Michigan 48933-1816 14. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to herein. The Original Standstill Agreement is superceded in its entirety by this Agreement and is no longer in force. 15. Counterparts; Facsimile. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, and signature pages may be delivered by facsimile, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. 16. Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. 17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Michigan, without regard to choice of law principles that would compel the application of the laws of any other jurisdiction. 18. Severability. In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 19. Successors and Assigns. This Agreement shall not be assignable by any of the parties to this Agreement, except the terms shall be applicable to a Replacement Director. This Agreement, however, shall be binding on successors of the parties hereto. 20. Survival of Representations, Warranties and Agreements. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement. 21. Amendments. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by all of the parties hereto. 22. Further Action. Each party agrees to execute any and all documents, and to do and perform any and all acts and things necessary or proper to effectuate or further evidence the terms and provisions of this Agreement. - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 29 of 31 - -------------------------------------------------------------------------------- 23. Consent to Jurisdiction. Each of the parties hereby irrevocably submits to the exclusive jurisdiction of any United States Federal or state court sitting in the State of Michigan in any action or proceeding arising out of or relating to this Agreement and each of the parties hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in any such court. 24. Expenses. Each party agrees to bear its own expenses in connection with the transactions contemplated hereby. [Remainder of Page Intentionally Left Blank] - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 30 of 31 - -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first above written. AMERICAN PHYSICIANS CAPITAL, INC. /s/ Spencer L. Schneider ------------------------------ Spencer L. Schneider /s/ Kevin Clinton - ------------------------ By: R. KEVIN CLINTON /s/ Joseph Stilwell President and CEO ------------------------------ Joseph Stilwell STILWELL VALUE PARTNERS II, L.P. STILWELL VALUE, LLC /s/ Joseph Stilwell /s/ Joseph Stilwell - ------------------------ ------------------------------ By: STILWELL VALUE LLC By: JOSEPH STILWELL General Partner, by Joseph Stilwell, Managing and Sole Member Managing and Sole Member STILWELL VALUE PARTNERS V, L.P. /s/ Joseph Stilwell - ------------------------ By: STILWELL VALUE LLC General Partner, by Joseph Stilwell, Managing and Sole Member STILWELL ASSOCIATES, L.P. /s/ Joseph Stilwell - ------------------------ By: STILWELL VALUE LLC General Partner, by Joseph Stilwell Managing and Sole Member STILWELL PARTNERS, L.P. /s/ Joseph Stilwell - ------------------------ By: JOSEPH STILWELL General Partner /s/ John Stilwell - ------------------------ John Stilwell - -------------------------------------------------------------------------------- CUSIP No. 028884104 SCHEDULE 13D Page 31 of 31 - -------------------------------------------------------------------------------- ATTACHMENT A FOR IMMEDIATE RELEASE Contact: Ms. Ann Storberg American Physicians Capital, Inc. 1301 North Hagadorn Road East Lansing, Michigan 48823 Phone: 517-324-6629 - ---------------------------- AMERICAN PHYSICIANS CAPITAL, INC. ADDS INVESTOR JOSEPH STILWELL TO ITS BOARD OF DIRECTORS East Lansing, Michigan, November 10, 2004 - American Physicians Capital, Inc. (APCapital) (NASDAQ: ACAP) announced that Joseph Stilwell has joined the Company's Board of Directors today. Mr. Stilwell is a New York based-private investor and his Stilwell Group is one of the Company's largest shareholders. Spencer Schneider, who was appointed to the Board in 2002 as a nominee of the Stilwell Group and later elected by shareholders for a three year term, will continue as a Director. In connection with the Mr. Stilwell's appointment, the Stilwell Group has agreed to a new three-year standstill agreement which replaces the 2002 agreement which was set to expire in February 2005. The new agreement provides that the Stilwell Group will support the Company's slate of directors at the 2005 annual meeting and during the term of the standstill agreement. The Company will nominate Mr. Stilwell and Mr. Schneider at the 2005 annual meeting for three year terms. R. Kevin Clinton, APCapital President and CEO, said: "We have been working closely with the Stilwell Group for almost three years and Mr. Stilwell will bring additional expertise to our Board of Directors and further strengthen our relationships with our shareholders as we continue to maximize shareholder value by focusing on our core business line in our core markets." -----END PRIVACY-ENHANCED MESSAGE-----