-----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, T97xRDnAcZt0eIVypVHOrX0WQCDlm/BQb9HW9g+q7q5p4RR95ssxcor9lrmJJDVl rn1ttE9dYIrQF6PDhh4pDQ== 0000724024-06-000004.txt : 20060426 0000724024-06-000004.hdr.sgml : 20060426 20060426113505 ACCESSION NUMBER: 0000724024-06-000004 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20060426 DATE AS OF CHANGE: 20060426 EFFECTIVENESS DATE: 20060426 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN PHYSICIANS SERVICE GROUP INC CENTRAL INDEX KEY: 0000724024 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MANAGEMENT SERVICES [8741] IRS NUMBER: 751458323 STATE OF INCORPORATION: TX FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-133544 FILM NUMBER: 06780128 BUSINESS ADDRESS: STREET 1: 1301 CAPITAL OF TEXAS HWY STREET 2: C-300 CITY: AUSTIN STATE: TX ZIP: 78746 BUSINESS PHONE: 5123280888 MAIL ADDRESS: STREET 1: 1301 CAPITAL OF TEXAS HIGHWAY CITY: AUTIN STATE: TX ZIP: 78746 S-8 1 form_s8.txt 2006 REGISTRATION STATEMENT ON FORM S-8 As filed with the Securities and Exchange Commission on April 25, 2006 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------- AMERICAN PHYSICIANS SERVICE GROUP, INC. (Exact name of Registrant as specified in its charter) Texas 75-1458323 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1301 Capital of Texas Highway, Suite C-300 Austin, Texas 78746 (Address of Principal Executive Offices) 2005 Incentive and Non-Qualified Stock Option Plan of American Physicians Service Group, Inc. AND American Physicians Service Group, Inc. Affiliated Group Deferred Compensation Master Plan (Full Title of the Plans) W. H. Hayes Senior Vice President - Finance, Chief Financial Officer 1301 Capital of Texas Highway, Suite C-300 Austin, Texas 78746 (512) 328-0888 (Name, address and telephone number of agent for service) Copy to: Timothy L. LaFrey Akin Gump Strauss Hauer & Feld LLP 300 West 6th Street, Suite 2100 Austin, Texas 78701 (512) 499-6200 ---------------------- CALCULATION OF REGISTRATION FEE
========================================= ================= ====================== ====================== ================= Proposed Maximum Proposed Maximum Amount of Title of Securities Amount to be Offering Price Per Aggregate Offering Registration to be Registered Registered Share(2) Price(2) Fee - ----------------------------------------- ----------------- ---------------------- ---------------------- ----------------- - ----------------------------------------- ----------------- ---------------------- ---------------------- ----------------- Common Stock to be registered in 350,000 $14.92 $5,223,225 $558.89 respect of the 2005 Incentive and Non-Qualified Stock Option Plan (1) Common Stock to be registered in 150,000 $14.92 $2,238,525 $239.52 respect of the Affiliated Group Deferred Compensation Master Plan ========================================= ================= ====================== ====================== =================
(1) Upon a future stock split, stock dividend or similar transaction involving the common stock of the registrant and during the effectiveness of this registration statement, the number of securities registered shall be automatically increased to cover the additional securities in accordance with Rule 416(a) under the Securities Act of 1933. (2) Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c) and (h) under the Securities Act of 1933, based on the average of the high and low price per common stock on April 19, 2006, as reported by NASDAQ. INTRODUCTORY STATEMENT On April 6, 2005, the board of directors of American Physicians Service Group, Inc., referred to herein as the registrant or APSG, adopted the 2005 Incentive and Non-Qualified Stock Option Plan and submitted it to the shareholders for consideration and approval. The shareholders of APSG approved the plan at the annual meeting of shareholders held on June 14, 2005. On December 7, 2004, the board of directors of APSG adopted the American Physicians Service Group, Inc. Affiliated Group Deferred Compensation Master Plan and submitted it to the shareholders for consideration and approval. The shareholders of APSG approved the plan at the annual meeting of shareholders held on June 14, 2005. This registration statement on Form S-8 is being filed with the SEC in respect of both the 2005 Incentive and Non-Qualified Stock Option Plan and the American Physicians Service Group, Inc. Affiliated Group Deferred Compensation Master Plan. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The document(s) containing the information specified in Part I of this registration statement on Form S-8 will be sent or given to plan participants as specified in Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended, or the Securities Act. Such documents need not be filed with the Securities and Exchange Commission, or the SEC, either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 promulgated under the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 below, taken together, constitute a prospectus that meets the requirement of Section 10(a) of the Securities Act. ITEM 1. PLAN INFORMATION. The document(s) containing the information specified in Item 1 of this registration statement on Form S-8 will be sent or given to plan participants as specified in Rule 428(b)(1) promulgated under the Securities Act and may be obtained by plan participants free of charge from the APSG Corporate Secretary. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. The document(s) containing the information specified in Item 2 of this registration statement on Form S-8 will be sent or given to plan participants as specified in Rule 428(b)(1) promulgated under the Securities Act and may be obtained by plan participants free of charge from the APSG Corporate Secretary. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents and information previously filed by APSG with the SEC are incorporated by reference in this registration statement: o Annual Report on Form 10-K for the year ended December 31, 2005; o o Current Report on Form 8-K filed with the SEC on March 13, 2006; o the description of common stock set forth in the registration statement on Form 8-A, dated January 6, 1984, for registration of the common stock pursuant to Section 12(g) of the Exchange Act of 1934, as amended, or the Exchange Act, including any amendment or report filed for the purpose of updating such description. In addition, all documents filed by APSG pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement that indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained hereby modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS. Article 2.02-1 of the Texas Business Corporation Act, or the TBCA, provides that a Texas corporation shall have the power to indemnify anyone who was, is, or may become a defendant or respondent to any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, or any appeal in such an action, suit or proceeding, and any inquiry or investigation that could lead to such an action, suit, or proceeding, because such person is or was a director of the corporation, provided that (i) such person conducted himself in good faith, (ii) such person reasonably believed (A) that in the case of conduct in his official capacity as a director of the corporation that his conduct was in the corporation's best interests and (B) in all other cases, that his conduct was at least not opposed to the corporation's best interests, and (iii) in the case of a criminal proceeding, such person has no reasonable cause to believe his conduct was unlawful. The termination of a proceeding by judgment, order, settlement, or conviction, or on a plea of nolo contendere or its equivalent, is not of itself determinative that a director is not eligible for indemnification by a corporation. Instead, a person shall be deemed to be liable in respect of any claim, issue or matter only after a court of competent jurisdiction adjudges the person liable and the person has exhausted all available appeals. APSG may not indemnify a director as described above for obligations resulting from a proceeding (i) in which such person is liable on the basis that he improperly received personal benefit, whether or not the benefit resulted from an action taken in his official capacity, or (ii) in which such person is found liable to the corporation (except that in such cases APSG may indemnify such director against reasonable expenses the director actually incurs in connection with the proceeding unless the director's misconduct was willful, in which case APSG may not pay such indemnification). A corporation may provide indemnification as described above only if a determination of indemnification is made: (i) by a majority vote of a quorum of directors who the proceeding does not name as defendants or respondents at the time of voting, regardless of whether the directors not named defendants or respondents constitute a quorum; (ii) by a majority vote of a committee of the board of directors, if (A) the committee is designated by a majority vote of the directors who at the time of the vote are not named defendants or respondents in the proceeding, regardless of whether the directors not named defendants or respondents constitute a quorum, and (B) the committee consists solely of one or more of the directors not named as defendants or respondents in the proceeding; (iii) by special legal counsel selected by the board of directors or a committee of the board by vote as set forth in (i) and (ii); or (iv) by the shareholders in a vote that excludes the shares held by the directors who are named defendants or respondents in the proceeding. A court may order indemnification even though APSG does not meet certain of these conditions, if the court deems indemnification proper and equitable; provided, however, that if the court determines that the indemnified person is liable to the corporation or that he improperly received a personal benefit, the court-ordered indemnification cannot exceed the reasonable expenses that the indemnified party actually incurred in connection with the proceeding. A person may be indemnified by a corporation as previously described against judgments, penalties (including excise and similar taxes), fines, settlements, and reasonable expenses actually incurred by the person in connection with the proceeding, provided, that if such a person is found liable to the corporation or is liable on the basis that he or she improperly received a personal benefit, the indemnification shall be limited to reasonable expenses actually incurred by the person in connection with the proceeding and shall not be available in respect of any proceeding in which the person shall have been found liable for willful or intentional misconduct in the performance of his duty to the corporation. 2 A corporation shall indemnify a director against reasonable expenses incurred by him in connection with the proceeding in which he is a named defendant or respondent because he is or was a director if he has been wholly successful, on the merits or otherwise, in the defense of the proceeding. In addition, if a director sues a corporation to recover indemnification in such a case, the court, upon ordering the corporation to pay indemnification, shall also award the director his expenses incurred in securing the indemnification. A corporation may pay, or reimburse a director for, the director's reasonable expenses incurred because he or she was, is, or may become a defendant correspondent in a proceeding, in advance of any final disposition of the proceeding and without any determination that the director is entitled to such payment or reimbursement under the above-described standards after the corporation receives a written affirmation by the director of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification under Article 2.02-1 of the TBCA and a written undertaking by or on behalf of the director (which must be an unlimited general obligation but that need not be secured, and that may be accepted without reference to the director's financial ability to pay) to repay the amount paid or reimbursed if it is ultimately determined that the director has not met that standard or if it is ultimately determined that indemnification of the director against expenses incurred by such director in connection with that proceeding is prohibited under the standards enumerated above. Notwithstanding the above, a corporation may pay or reimburse a director for expenses incurred in connection with the director's appearance as a witness or other participation in a proceeding at a time when the director is not a named defendant or respondent in the proceeding. Article 2.02-1 of the TBCA permits the purchase and maintenance of insurance or another arrangement on behalf of directors, officers, employees and agents of the corporation against any liability asserted against or incurred by them in any such capacity or arising out of the person's status as such, whether or not the corporation itself would have the power to indemnify any such officer or director against such liability; provided, that if the insurance or other arrangement is with a person or entity that is not regularly engaged in the business of providing insurance coverage, the insurance or arrangement may provide for payment of a liability with respect to which the corporation would not have the power to indemnify the person only if the shareholders of the corporation have approved including coverage for the additional liability. Any indemnification of, or advance of expenses to, a director must be reported in writing to shareholders with or before the notice or waiver of notice of the next shareholders' meeting or before the next submission to shareholders of a consent to action without a meeting, and, in any case, within the12-month period immediately following such indemnification or advance. A corporation shall indemnify officers and others who are not officers, employees, or agents of the corporation, but who are serving at the corporation's request as a director, officer, partner, venturer, proprietor, trustee, employee, agent, or similar functionary for another entity, to the same extent that the corporation indemnifies directors. A corporation may indemnify and advance expenses to such officers and other persons to the same extent that it may indemnify, or advance expenses to, directors. Article IX of APSG's Restated Articles of Incorporation provides that, to the extent permitted by applicable law and by resolution or other proper action of the board of directors of APSG, APSG will indemnify its present and former directors and officers, its employees and agents and any other person serving at the request of APSG as a director, trustee, officer, employee or agent of another corporation, partnership, joint venture, association, trust or other enterprise, against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any threatened, pending or completed action, suit or proceeding to which any such person is, or is threatened to be made, a party and which may arise by reason of the fact he is or was a person occupying any such office or position. In addition, APSG currently maintains directors and officers' liability insurance. Article XVI of APSG's Restated Articles of Incorporation provides that APSG directors shall not be liable to APSG or its shareholders for monetary damages for an act or omission in the director's capacity as a director except for liability based upon (i) a breach of duty of loyalty to APSG or its shareholders, (ii) an act or omission not in good faith or that involves intentional misconduct or a knowing violation of law, (iii) a transaction from which a director received an improper benefit, whether or not the benefit resulted from an action taken within the scope of the director's office, or (iv) an act related to an unlawful stock repurchase or payment of a dividend. 3 In addition to the indemnifications provided by APSG's Restated Articles of Incorporation, APSG has entered into indemnity agreements with its officers and directors. The agreements generally provide that, to the extent permitted by law, APSG must indemnify each person for judgments, expenses, fines, penalties and amounts paid in settlement of claims that result from the fact that they were was an officer, director or employee of APSG. The preceding discussion of indemnification agreements, APSG's Restated Articles of Incorporation and Section 2.02-1 of the Texas Business Corporation Act is not intended to be exhaustive and is qualified in its entirety by the indemnity agreements, Restated Articles of Incorporation and Section 2.02-1 of the Texas Business Corporation Act. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. Exhibit No. Description ---------- ------------ 4.1* 2005 Incentive and Non-Qualified Stock Option Plan of American Physicians Service Group, Inc. 4.2* American Physicians Service Group, Inc. Affiliated Group Deferred Compensation Master Plan. 5.1* Opinion of Akin Gump Strauss Hauer & Feld LLP. 23.1* Consent of Akin Gump Strauss Hauer & Feld LLP (included in the opinion filed as Exhibit 5.1 to this registration statement). 23.2* Consent of independent registered public accounting firm. 24.1* Power of Attorney (included on the signature page of this registration statement). - --------------- *Filed herewith. ITEM 9. UNDERTAKINGS. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made of the securities registered hereby, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (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 the undertakings set forth in paragraphs (1)(i) and (1)(ii) above do not apply to a registration statement on Form S-8 if the information required to be included in a post-effective amendment by these paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement. 4 (2) That, for the purpose of determining any liability under the Securities Act, each such 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) 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. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act), that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of APSG pursuant to the foregoing provisions, or otherwise, APSG has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by APSG of expenses incurred or paid by a director, officer or controlling person of APSG 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, APSG 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 Securities Act and will be governed by the final adjudication of such issue. 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, APSG certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Austin, State of Texas, on April 25, 2006. AMERICAN PHYSICIANS SERVICE GROUP, INC. By: /s/ Kenneth S. Shifrin -------------------------------------------- Kenneth S. Shifrin Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below hereby constitutes and appoints each of Kenneth S. Shifrin and W.H. Hayes with the power to act without the other, his or her true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for him or her in his or her name, place and stead, in any and all capacities, to sign on his or her behalf individually and in each capacity stated below any or all amendments or post-effective amendments to this registration statement, and to file the same, with all exhibits and other documents relating thereto, granting unto said attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or either of them, or their substitutes, may lawfully 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 below on April 25, 2006. Signature Title --------- ---------- /s/ Kenneth S. Shifrin Chairman of the Board and Chief - ----------------------- Executive Officer Kenneth S. Shifrin (Principal Executive Officer) /s/ W. H. Hayes Senior Vice President - Finance, - ---------------------- Secretary and Chief W. H. Hayes Financial Officer (Principal Financial Officer) /s/ Thomas R. Solimine Controller - ---------------------- (Principal Accounting Officer) Thomas R. Solimine /s/ Jackie Majors Director - --------------------- Jackie Majors /s/ Lew N. Little, Jr. Director - ---------------------- Lew N. Little, Jr. /s/ William A. Searles Director - ----------------------- William A. Searles /s/ Cheryl Williams Director - ---------------------- Cheryl Williams 5 INDEX TO EXHIBITS Exhibit No. Description ---------- ----------- 4.1* 2005 Incentive and Non-Qualified Stock Option Plan of American Physicians Service Group, Inc. 4.2* American Physicians Service Group, Inc. Affiliated Group Deferred Compensation Master Plan. 5.1* Opinion of Akin Gump Strauss Hauer & Feld LLP. 23.1* Consent of Akin Gump Strauss Hauer & Feld LLP (included in the opinion filed as Exhibit 5.1 to this registration statement). 23.2* Consent of independent registered public accounting firm. 24.1* Power of Attorney (included on the signature page of this registration statement). - --------------- *Filed herewith 7 EX-4 2 nqsoplan.txt 2005 NON-QUALIFIED STOCK OPTION PLAN Exhibit No. 4.1 2005 INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN OF AMERICAN PHYSICIANS SERVICE GROUP, INC. A Texas Corporation I. Purpose of Plan The purpose of this 2005 Incentive and Non-Qualified Stock Option Plan (this "Plan") is to strengthen American Physicians Service Group, Inc. a Texas corporation (the "Corporation"), and its subsidiaries, by providing stock options as a means to attract, retain and motivate corporate personnel. II. Administration This Plan shall be administered by an administrative body (the "Committee") designated by the Board of Directors of the Corporation (the "Board"). The Board may designate itself as the Committee or appoint two or more "Non-Employee Directors" to a committee which shall serve as the Committee. For purposes of this Plan, "Non-Employee Director" will mean a director who meets the definition of "non-employee director" under Rule 16b-3 under the Securities Exchange Act of 1934 (as amended, the "1934 Act"), and who qualifies as an "outside director" within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code"), and to the extent applicable, meets the requirements for an independent director, pursuant to the rules of any securities exchange on which the stock is listed, or if the stock is not listed, the rules of the National Association of Securities Dealers, Inc. ("NASD"), if applicable. The Committee shall have the sole authority to select the persons entitled to receive Options (as defined below) from among those eligible hereunder (the "Optionees") and to establish the number of shares that may be issued under each Option to such persons; provided, however, that, notwithstanding any provision in this Plan to the contrary, the maximum number of shares of common stock, $.10 par value per share of the Corporation (the "Common Stock"), that may be subject to Options granted under the Plan to an individual Optionee during any calendar year may not exceed 150,000 (subject to adjustment in the same manner as provided in Article VIII hereof to prevent dilution.) The limitation set forth in the preceding sentence shall be applied in a manner which will permit compensation generated under the Plan to constitute "performance-based" compensation for purposes of Section 162(m) of the Code, including, without limitation, counting against such maximum number of shares, to the extent required under Section 162(m) of the Code and applicable interpretive authority thereunder, any shares subject to Options that are canceled or repriced. All determinations, interpretations and constructions made by the Committee in good faith will not be subject to review by any person and will be final, binding and conclusive on all persons. Members of the Committee and any officer or employee of the Corporation acting at the direction of, or on behalf of, the Committee will not be personally liable for any action or determination taken or made in good faith with respect to the Plan, and will, to the extent permitted by law, be fully indemnified by the Corporation with respect to any such action or determination. 1 III. Grant of Options The Corporation is authorized to grant incentive stock options ("Incentive Stock Options") as defined in section 422 of the Code and options that are not intended to be Incentive Stock Options (hereafter "Non-Qualified Stock Options" and, together with Incentive Stock Options, the "Options"). Any Option granted under this Plan shall be granted within 10 years from the date this Plan is adopted, or the date this Plan is approved by the shareholders pursuant to Article X, whichever is earlier. No Option granted under this Plan shall be exercisable by its terms after the expiration of 10 years from the grant of the Option. Options may be granted only to individuals (a) who are employees (including officers and directors who are also employees) of the Corporation or any parent or subsidiary corporation (as defined in section 424 of the Code) of the Corporation, (b) who are non-employee directors of the Corporation at the time the Option is granted and who may be granted Options hereunder in compliance with Rule 16b-3, or (c) consultants and advisors of the Corporation or any parent or subsidiary corporation of the Corporation who render bona fide services to the Corporation or any parent or subsidiary corporation of the Corporation; provided that such services must not be in connection with the offer or sale of securities in a capital-raising transaction. Options may be granted to the same individual on more than one occasion. Incentive Stock Options may not be granted to persons who own stock possessing more than 10 percent of the total combined voting power of all classes of stock of the Corporation, or of its parent or subsidiary, if any, within the meaning of section 422(b)(6) of the Code, unless (i) at the time such Option is granted the option exercise price is at least 110% of the fair market value of the Common Stock subject to such Option and (ii) such Option by its terms is not exercisable after the expiration of five years from the date of the grant. To the extent that the aggregate fair market value of Common Stock (as determined in good faith by the Committee at the time the Incentive Stock Option is granted), with respect to which Incentive Stock Options are exercisable for the first time by an individual during any calendar year (under all incentive stock option plans of the Corporation and any parent or subsidiary corporation) exceeds $100,000, such excess Incentive Stock Options shall be treated as Non-Qualified Stock Options. The Committee shall determine, in accordance with applicable provisions of the Code, Treasury Regulations and other administrative pronouncements, which of an Optionee's Incentive Stock Options will not constitute Incentive Stock Options because of such limitation and shall notify the Optionee of such determination as soon as practicable after such determination. IV. Stock Subject to Plan The aggregate number of shares of Common Stock that may be issued pursuant to Options granted under this Plan shall not exceed 350,000 shares of Common Stock (subject to adjustment as provided in Article VIII). Such shares may consist of authorized but unissued shares of Common Stock or previously issued shares of Common stock reacquired by the Corporation. Any of such shares which remain unissued and which are not subject to outstanding Options at the termination of this Plan shall cease to be subject to this Plan, but, until termination of this Plan, the Corporation shall at all times make available a sufficient number of shares to meet the requirements of this Plan. Should any Option hereunder expire or terminate 2 prior to its exercise in full, the shares of Common Stock theretofore subject to such Option may again be subject to an Option granted under this Plan to the extent permitted under Rule 16b-3. The aggregate number of shares which may be issued under this Plan shall be subject to adjustment as provided in Article VIII hereof. Exercise of an Option in any manner pursuant to the terms of this Plan and the related Option Agreement shall result in a decrease in the number of shares of Common Stock which may thereafter be available, for purposes of the Plan, by the number of shares as to which the Option is exercised. Separate stock certificates shall be issued by the Corporation for those shares acquired pursuant to the exercise of an Incentive Stock Option and for those shares acquired pursuant to the exercise of any Non-Qualified Stock Options. V. Option Agreements Each Option shall be evidenced by a written agreement between the Corporation and the Optionee ("Option Agreement") which shall contain such terms and conditions as the Committee deems necessary, including, without limitation, terms and conditions relating to the termination of Options. The terms and conditions of the respective Option Agreements need not be identical. VI. Option Price; Payment of Option Price The purchase price for a share of Common Stock subject to an Incentive Stock Option granted pursuant to this Plan shall not be less than the fair market value of the Common Stock subject to such Incentive Stock Option on the date such Option is granted. The purchase price for a share of the Common Stock subject to a Non-Qualifying Stock Option granted pursuant to this Plan shall be not less than 100% of the fair market value of the Common Stock subject to such Non-Qualifying Stock Option on the date such Option is granted. For all purposes under the Plan, the fair market value of a share of Common Stock on a particular date shall be equal to the closing price per share of the Common Stock (i) reported by the National Market System of NASDAQ on that date or (ii) if the Common Stock is listed on a national stock exchange, reported on the stock exchange composite tape on that date. If the Common Stock is traded over the counter at the time a determination of its fair market value is required to be made hereunder, its fair market value shall be deemed to be equal to the average between the reported high and low or closing bid and ask prices of the Common Stock on the most recent date on which the Common Stock was publicly traded. In the event the Common Stock is not publicly traded at the time a determination of its value is required to be made hereunder, the determination of its fair market value shall be made in good faith by the Committee in such manner as it deems appropriate. Notwithstanding the foregoing, an Incentive Stock Option or a Non-Qualifying Stock Option may be granted with an exercise price less than 100% of fair market value if such Option is granted pursuant to an assumption or substitution for another option in a manner satisfying the provisions of Section 424(a) of the Code. The exercise price of an Option shall be paid in one of the following forms (or any combination thereof): (a) cash or (b) the transfer to the Company of already-owned shares of Common Stock; provided, however that the Committee may determine that the exercise price be 3 paid only in cash. In addition, Options may be exercised through such "cashless exercise" procedures that are, from time to time, deemed acceptable by the Committee and not in violation of applicable law. Any shares of Common Stock transferred to the Company as payment of the exercise price (including shares of Common Stock underlying the Option to be exercised and being used to pay the exercise price therefor pursuant to a cashless exercise) shall be valued at their fair market value on the trading day preceding the date of exercise of such Option. VII. Options Nontransferable Incentive Stock Options and all rights granted thereunder shall not be transferable other than by will or the laws of descent and distribution. Non-Qualified Stock Options and all rights granted thereunder shall not be transferable other than by will or the laws of descent and distribution, or upon the express prior written consent of the Committee in each instance so long as such transfer is to a "family member" as defined under General Instruction A(1)(a)(5) to the Registration Statement on Form S-8. All Incentive Stock Options shall be exercisable during the Optionee's lifetime, only by the Optionee or the Optionee's guardian or legal representative. VIII. Recapitalization or Reorganization In the event of a stock split, reverse stock split, stock dividend, combination or reclassification of the Common Stock, an appropriate and proportionate adjustment shall be made to the maximum number of shares of Common Stock available for issuance pursuant to Options granted pursuant to this Plan, as set forth in Article IV hereof, and the maximum number of shares of Common Stock subject to Options granted to a person during any calendar year, as set forth in Article II hereof. A corresponding change shall be made to the number and kind of shares, and the exercise price per share, of unexercised Options. IX. Change in Control and Other Corporate Transactions In the event of a Change in Control, dissolution or liquidation of the Corporation, or any corporate separation or division, including, but not limited to, a split-up, a split-off or a spin-off, or a sale of substantially all of the assets of the Corporation (collectively, a "Corporate Transaction"), then the Corporation, to the extent permitted by applicable law, but otherwise in the sole discretion of the Committee, may provide for: (i) the continuation of outstanding Options by the Corporation (if the Corporation is the surviving entity); (ii) the assumption of the Plan and such outstanding Options by the surviving entity or its parent; (iii) the substitution by the surviving entity or its parent of Options with substantially the same terms (including Options to acquire the same consideration paid to the shareholders in the transaction described in this Article IX) for such outstanding Options and, if appropriate, subject to the equitable adjustment provisions of Article VIII hereof; (iv) the cancellation of such outstanding Options in consideration for a payment equal in value to the difference between the fair market value and the exercise price for all shares of Common Stock subject to exercise (i.e., to the extent vested) under any outstanding Option; or (v) the cancellation of such outstanding Options without payment of any consideration. Any such payment may be paid in cash or such other consideration payable to the holders of outstanding shares of Common Stock of the Corporation in connection with such Corporate Transaction. If vested Options would be canceled without consideration, the Option holder shall have the right, exercisable during the later of the ten-day 4 period ending on the fifth day prior to such Corporate Transaction or ten days after the Committee provides the grant holder a notice of cancellation, to exercise such Options in whole or in part without regard to any installment exercise provisions in the Option Agreement. In addition, the Committee, in its discretion, may provide for acceleration of unvested Options in connection with any of the alternatives described above. A "Change in Control" shall mean the occurrence of any of the following: (a) The "acquisition" by any "Person" (as the term person is used for purposes of Section 13(d) or 14(d) of the 1934 Act) of "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of any securities of the Corporation which generally entitles the holder thereof to vote for the election of directors of the Corporation (the "Voting Securities") which, when added to the Voting Securities then "Beneficially Owned" by such Person, would result in such Person either "Beneficially Owning" fifty percent (50%) or more of the combined voting power of the Corporation's then outstanding Voting Securities or having the ability to elect fifty percent (50%) or more of the Corporation's directors; or (b) The consummation of a merger, consolidation or reorganization involving the Corporation (a "Business Combination"), unless the stockholders of the Corporation, immediately before the Business Combination, own, directly or indirectly immediately following the Business Combination, at least fifty percent (50%) of the combined voting power of the outstanding voting securities of the corporation resulting from the Business Combination in substantially the same proportion as their ownership of the Voting Securities immediately before the Business Combination; or (c) The consummation of a merger or consolidation involving the Corporation where the Corporation is not the surviving entity; or (d) Any change in the identity of directors constituting a majority of the Board within a twenty-four month period unless the change was approved by a majority of the Incumbent Directors, where "Incumbent Director" means a member of the Board at the beginning of the period in question, including any director who was not a member of the Board at the beginning of such period but was elected or nominated to the Board by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors. X. Effective Date of Plan This Plan shall be effective on approval by the affirmative vote of the holders of a majority of the outstanding shares of capital stock of the Corporation present or represented and entitled to vote thereon at a duly held shareholder meeting or by unanimous written consent of the shareholders of the Corporation in the manner required by Rule 16b-3. XI. Amendment or Termination of Plan The Board in its discretion may terminate this Plan at any time with respect to any shares of Common Stock for which Options have not theretofore been granted. The Board shall have the right to alter or amend this Plan or any part hereof from time to time; provided, that no 5 change in any Option heretofore granted may be made which would impair the rights of the Optionee without the consent of such Optionee; and provided, further, that (i) the Board may not make any alteration or amendment which would decrease any authority granted to the Committee hereunder in contravention of Rule 16b-3 and (ii) the Board may not make any alteration or amendment which would materially increase the benefits accruing to participants under the Plan, increase the aggregate number of shares which may be issued pursuant to the provisions of the Plan, change the class of individuals eligible to receive Options under the Plan or extend the term of the Plan, without the approval of the shareholders of the Corporation. XII. Compliance with Section 16 With respect to persons subject to Section 16 of the 1934 Act, transactions under this Plan are intended to comply with all applicable conditions of Rule 16b-3 or its successors under the 1934 Act. To the extent any provision of the Plan or action by the Committee fails to so comply, it shall be deemed null and void, to the extent permitted by law and deemed advisable by the Committee. XIII. Exchange Provisions; Governing Law The Committee may at any time offer to exchange or buy out any previously granted Option for a payment in cash, Common Stock or another Option, based on the terms and conditions the Committee determines and communicates to the Option holder at the time the offer is made. This Plan shall be governed by the laws of the State of Texas. [Signature Page Follows] 6 AMERICAN PHYSICIANS SERVICE GROUP, INC. By: /s/ W.H. Hayes ------------------------------------ W.H. Hayes Senior Vice President and Secretary S-1 EX-4 3 defcomp.txt DEFERRED COMPENSAION PLAN Exhibit No. 4.2 AMERICAN PHYSICIANS SERVICE GROUP, INC. AFFILIATED GROUP DEFERRED COMPENSATION MASTER PLAN This American Physicians Service Group, Inc. Affiliated Group Deferred Compensation Master Plan (this "Plan") is entered into to be effective as of the 7th day of December, 2004 by and between the American Physicians Service Group, Inc., Affiliated Group company set forth on Schedule A hereto (the "Employer") and the employee or director identified on Schedule A hereto (the "Participant"). RECITALS A. Participant is an employee or director of Employer. Participant and Employer, as part of Participant's compensation, have agreed that Participant may receive certain additional compensation under the terms and conditions of this Plan. B. Participant and Employer intend for this Plan to be an unfunded, unsecured promise to pay to Participant the Shares (as defined in this Agreement) subject to the terms and conditions of this Plan. C. Participant and Employer intend for this to be a mandatory deferral of compensation; the payment of benefits under this Plan will be deferred in accordance with this Plan. No Participant will have any election to change the deferral of benefits under this Plan. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Plan hereby agree as follows: ARTICLE I DEFINITIONS Capitalized words and phrases not otherwise defined in this Plan and used in this Plan have the following meanings: 1.1 "American Physicians Service Group, Inc. Affiliated Group" shall mean the following companies or entities: American Physicians Group, Inc., a Texas corporation, APS Financial Corporation, a Texas corporation, and FMI Partners, Ltd., a Texas limited partnership. The definition of American Physicians Service Group, Inc. Affiliated Group may be amended from time to time to include other companies. 1.2 "Disability" shall mean "disability" as defined in the Internal Revenue Code of 1986, as amended, (the "Code") section 409A(a)(1)(C) or, if use of the definition in the then current disability policy of Employer does not violate Code section 409A, the definition of "disability" in the then current long term disability policy then in effect for employees of Employer as such policy may change from time to time. 1 1.3 "Participant's Account" shall mean the book entry account established on behalf of Participant in accordance with Section 2.1 hereof. 1.4 "Participant's Account Balance" shall mean the cumulative sum of the book entries made on behalf of Participant in accordance with Section 2.1 hereof. 1.5 "Termination for Cause" shall mean any one of the following: (a) If the Participant has an employment contract with the Employer, any Termination for Cause under that employment contract shall be a termination for cause under this Plan; (b) Participant is convicted of an offense constituting a felony or involving moral turpitude; or (c) Participant in a material and substantial way (i) violates any written policy of Employer or (ii) fails to follow reasonable instructions from Participant's supervisor or to use good faith efforts to carry out Participant's employment duties and fails to cure the foregoing within fifteen days of notice by such Participant's supervisor of such failure. 1.6 "Committee" shall mean an administrative body designated by the Board of Directors of American Physicians Service Group, Inc. (the "Board"). The Board may designate itself as the Committee or appoint two or more "Non-Employee Directors" to a committee which shall serve as the Committee. ARTICLE II GRANT OF DEFERRED COMPENSATION 2.1 New Participants; Credit to Participant's Account Employer shall admit new Participants into the Plan no later than the last day of the calendar year in the year preceding the first year in which the Participant is to be a Participant in the Plan or as permitted by Code section 409A. For each year in which this Plan is in effect, the Employer may credit to the Participant's Account a number of shares of American Physicians Service Group, Inc. stock as determined by the Committee (the "Annual Credit") (the cumulative sum of all Annual Credits for Participant collectively referred to as the "Shares"), as a book entry only and Participant shall become entitled to receive the Shares in accordance with Article IV hereto. Each year's Annual Credit shall include any shares of American Physicians Service Group, Inc. which were allocated to Participant as a result of a forfeiture by another participant under this Plan. 2.2 Shares Unfunded, Unsecured Participant understands and acknowledges that the credit of Shares in paragraph 2.1 is an unfunded and unsecured promise to distribute the Shares in accordance with Article IV hereto. Upon the grant of deferred compensation to a Participant's Account, the Participant shall have no right to the Shares, shall not be considered a stockholder with 2 respect to the Shares, shall not be entitled to any dividends or entitled to vote the Shares unless and until the Shares are distributed in accordance with the pay-out described in Article IV hereof. No Participant shall have any right to change the deferral of his receipt of benefits under the terms and conditions of this Plan. 2.3 Maximum Number of Shares The maximum number of Shares that may be credited to all Participants under the terms of this Plan is one hundred thousand (150,000). Any credit of any Share which would cause the total number of Shares credited under this Plan to exceed one hundred thousand (150,000) shall be void and have no legal effect. ARTICLE III SCHEDULE OF DEFERRED COMPENSATION 3.1 Schedule The Shares are earned in the year of award and will be subject to the following schedule: Each year's annual credit shall be subject to a separate schedule as follows: On the first day of year following the year in which each Annual Credit is credited to the Participant's Account and on the first day of each of the next four years, twenty percent (20%) of that year's Annual Credit shall be eligible for the application of Article IV hereof (the "Eligible Shares"); the Participant shall only become entitled to receive the Shares as set forth in Article IV hereof. 3.2 Acceleration Upon the occurrence of any of the following 100% of the Shares shall become eligible for the application of Article IV hereof: (i) upon the death of the Participant, (ii) upon the Disability of the Participant, or (iii) upon the termination or resignation of the Participant from the Employer's employment provided that the following conditions are satisfied: (a) if terminated, such termination was not a Termination for Cause and (b) Participant executed a non-competition agreement reasonably satisfactory to Employer. 3.3 Age 60 Upon the Participant's attaining the age of sixty (60) and provided that the Participant has been a Participant in this Plan for at least five (5) years, the Participant shall become entitled to receive the Eligible Shares as defined in Section 3.1, and each year thereafter, Participant shall be entitled to receive that year's Eligible Shares. 3.4 Forfeiture of Shares Upon the occurrence of the following, Participant shall forfeit shares not yet eligible for the application of Article IV hereof pursuant to Sections 3.1, 3.2, or 3.3: (i) if Participant is terminated and such termination is Termination for Cause, or (ii) if Participant resigns 3 for any reason or is terminated, but such termination is not a Termination for Cause, and Participant does not execute a non-competition agreement reasonably satisfactory to Employer. Allocations of forfeitures will be reviewed and approved by the Committee. 3.5 Re-allocation of Forfeited Shares Any forfeited Shares shall be allocated pro-rata to other participants in this Plan based upon the percentage that each participant's account balance bears to the sum of all participants' account balances at the time of the forfeiture. ARTICLE IV PAY-OUT OF DEFERRED COMPENSATION 4.1 Pay-Out of Participant's Entire Account Balance in Lump Sum Each Participant's Account Balance, represented by the Shares, shall be paid to such Participant in full upon the occurrence of the following: (i) the death of the Participant, or (ii) the Disability of the Participant. In order to meet the requirements of pay-out under this Article IV, on the date Participant becomes entitled to the pay-out of Participant's deferred compensation, Employer shall cause the Shares to be issued into the name of the Participant, it being expressly understood that the form of payment for the deferred compensation under this Plan are shares of stock of American Physicians Service Group, Inc. 4.2 Pay-Out at Age 60 Participant shall be paid the Eligible Shares under the terms and conditions as described in Section 3.3 hereof upon Participant attaining age sixty (60) provided Participant meets the requirements set forth in Section 3.3 herein. 4.3 Pay-Out of Participant's Entire Account Balance in Installments In the event that the Participant executed a non-competition agreement reasonably satisfactory to Employer each Participant's Account Balance shall be paid to such Participant in four equal installments beginning with the date of the non-competition agreement and continuing annually thereafter on the anniversary of the non-competition agreement. 4.4 Pay-Out of the Eligible Portion of Participant's Account Balance in Lump Sum The eligible portion of each Participant's Account Balance shall be paid to such Participant in the event that Participant is terminated and such termination is Termination for Cause, or (ii) if Participant resigns for any reason or is terminated but such termination is not a Termination for Cause and Participant does not execute a non-competition agreement reasonably satisfactory to Employer. 4 4.5 Limitation on Pay-Out for Specified Employees Notwithstanding any other provision of this Plan, in the case of any Participant who is a "Specified Employee" as defined in Code section 409A(a)(2)(B), such Participant shall not be entitled to receive any pay-outs under this Article IV until six (6) months following such Participant's termination of employment, whether or not for cause. 4.6 No Joint Liability No member of the American Physicians Service Group Inc. Affiliated Group shall be liable for the payment of the Shares to any Participant who is not an employee of that company or entity. ARTICLE V DESIGNATION OF BENEFICIARY In the event of the death of the Participant, the Participant's Account Balance shall be payable to the Participant's spouse, if any. Otherwise, the Participant's Account Balance shall be payable to the Participant's estate. ARTICLE VI WITHHOLDING OF TAXES Employer shall take, and Participant shall cooperate with, appropriate measures to assure compliance with state and federal withholding requirements to cover all taxes required to be paid by applicable law. ARTICLE VII MISCELLANEOUS 7.1 Entire Agreement This Plan and Schedule A constitute the entire agreement between the parties and no party shall be liable or bound to any party in any manner by any warranties, representations, or covenants except as specifically set forth in this Plan and Schedule A. The terms and conditions of this Plan and Schedule A shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. 7.2 Governing Law This Plan and Schedule A shall be governed by and construed under the laws of the State of Texas applicable to agreements made and fully performable therein. 7.3 Modification; Waiver No modification or amendment of any provision of this Plan or Schedule A shall be effective unless in writing and approved by each of the parties hereto, and no consent or waiver of any provision of this Plan or Schedule A or departure therefrom shall be effective unless in writing and executed by the party against which such consent or waiver is effective. 5 7.4 Headings Section and other headings contained in this Plan and Schedule A are for reference purposes only and are not intended to describe, interpret, define, or limit the scope, extent, or intent of this Plan or any provision hereof. IN WITNESS WHEREOF, this Plan is adopted to be effective as of the date set forth above. EMPLOYER: American Physicians Service Group, Inc. A Texas corporation By: /s/ W.H. Hayes Name: W.H. Hayes Title: Senior Vice-President APS Financial Corporation, A Texas corporation By: /s/ George Conwill Name: George Conwill Title: President FMI Partners, Ltd., A Texas limited partnership By: APS Facilities Management, Inc. Its: General Partner By: /s/ Maury Magids Name: Maury Magids Title: President 6 SCHEDULE A to the American Physicians Service Group, Inc. Affiliated Group Deferred Compensation Master Plan 1. Employer Name: _____________________ 2. Participant Name: ____________________ 3. Annual Credit, First Year: ______________ 4. Annual Credit: Subsequent Years: Year: Credit: ====== ============ ====== ============ ====== ============ ====== ============ ====== ============ ====== ============ ====== ============ ====== ============ ====== ============ ====== ============ Employer: Participant: Name: ____________________ ____________________ __________________________ Name: ______________ By: ________________________ Name: _____________________ Title: ______________________ Executed to be effective as of the ____day of __________, 200__. EX-5 4 akingump.txt OPINION AND CONSENT OF LEGAL COUNSEL Exhibit No. 5.1 [GRAPHIC OMITTED][GRAPHIC OMITTED] AKIN GUMP STRAUSS HAUER & FELD Attorneys at Law April 24, 2006 American Physicians Service Group, Inc. 1301 Capital of Texas Highway South Suite B-200 Austin, Texas 78746 Ladies and Gentlemen: We have acted as special counsel to American Physicians Service Group, Inc., a Texas corporation (the "Company"), in connection with the registration, pursuant to a registration statement on Form S-8 (the "Registration Statement"), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), of (1) up to 350,000 shares of the Company's common stock, par value $0.10 per share, ("Company Shares") pursuant to the 2005 Incentive and Non-Qualified Stock Option Plan of American Physicians Service Group, Inc. and (2) up to 150,000 Company Shares pursuant to the American Physicians Service Group, Inc. Affiliated Group Deferred Compensation Master Plan ((1) and (2) together, the "Plans"). We have examined originals or certified copies of such corporate records of the Company and other certificates and documents of officials of the Company, public officials and others as we have deemed appropriate for purposes of this letter. As to various questions of fact relevant to this letter, we have relied, without independent investigation, upon certificates and documents of officials of the Company and public officials and representations of the Company, all of which we assume to be true, correct and complete. We have made no inquiry of the Company or any other person or entity (including governmental authorities) regarding, and no review of, any judgments, orders, decrees, franchises, licenses, permits or other public records or agreements to which the Company is a party, and our actual knowledge of any such matters is accordingly limited. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to authentic original documents of all copies submitted to us as conformed, certified or reproduced copies, and that the certificates for the Company Shares will conform to the specimen thereof we have reviewed and will be duly countersigned by a transfer agent and duly registered by a registrar. Based upon the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth hereinafter, we are of the opinion that when the Registration Statement has become effective under the Securities Act and the Company Shares registered thereby are issued and delivered as described in the Registration Statement (and the prospectus referred to therein) and the Plans, such Company Shares will be duly authorized, validly issued, fully paid and non-assessable. American Physicians Service Group, Inc. Page 2 April 24, 2006 The opinions and other matters in this letter are qualified in their entirety and subject to the following: A. We express no opinion as to the laws of any jurisdiction other than the Texas Business Corporation Act. We have made no special investigation or review of any published constitutions, treaties, laws, rules or regulations or judicial or administrative decisions, other than a review of the Texas Business Corporation Act. B. With respect to the opinions expressed above as to the Company Shares being validly issued, fully paid and non-assessable when issued and delivered pursuant to the terms of the Plans, we assume that the price per Company Share of such issuance will be at least equal to the par value per share of the Company Shares. C. We have assumed that no fraud, dishonesty, forgery, coercion, duress or breach of fiduciary duty exists or will exist with respect to any of the matters relevant to the opinions expressed in this letter. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder. Sincerely, /s/ Akin Gump Strauss Hauer & Feld LLP AKIN GUMP STRAUSS HAUER & FELD LLP EX-23 5 bdo.txt CONSENT OF INDEPENDENT PUBLIC ACCOUNTING FIRM Exhibit No. 23.2 BDO Consent of Independent Registered Public Accounting Firm American Physicians Service Group, Inc. Austin, Texas We hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement of our report dated March 2, 2006, relating to the consolidated financial statements and schedule of American Physicians Service Group, Inc. appearing in the Company's Annual Report of Form 10-K for the year ended December 31, 2005. /s/ BDO Seidman Houston, Texas April 25, 2006 -----END PRIVACY-ENHANCED MESSAGE-----