<PAGE>
As filed with the Securities and Exchange Commission on October 30, 1997
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------
FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------------
AMERICAN CLAIMS EVALUATION, INC.
(Exact name of registrant as specified in its charter)
New York 11-2601199
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Jericho Plaza, Jericho, New York 11753
(Address of Principal Executive Offices) (Zip Code)
1997 STOCK INCENTIVE PLAN
(Full Title of the Plan)
Gary Gelman, President and Chief Executive Officer
American Claims Evaluation, Inc.
One Jericho Plaza
Jericho, New York 11753
---------------------------------------
(Name and address of agent for service)
(516) 938-8000
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
-------------------------------
Copy to:
Edward I. Tishelman, Esq.
Hartman & Craven LLP
460 Park Avenue
New York, New York 10022
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed maximum Proposed maximum Amount of
Title of Amount to be offering price per aggregate offering registration
securities to be registered registered unit(1) price(1) fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share ..... 750,000 shares $2.25 $1,333,550.00 $404.11
========================================================================================================================
</TABLE>
(1) Based on a per share exercise price of (i) $1.25 for 300,000 shares; and
(ii) $2.25 for 35,000 shares. The balance of the shares are exercisable at $2.12
per share and is estimated solely for the purpose of calculating the
registration fee in accordance with Rule 457(c) and (h) under the Securities Act
of 1933, as amended. The price per share is estimated based on the average of
the high and low bid prices for American Claims Evaluation, Inc.'s Common Stock
on October 29, 1997, as reported by the National Association of Securities
Dealers' Automated Quotation System.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents By Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by American Claims Evaluation, Inc. (the
"Registrant") are hereby incorporated by reference in this Registration
Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended March 31, 1997 filed with the Commission on June 27, 1997;
(b) The Registrant's Form 10-Q for the quarter ended June 30, 1997, as
filed with the Commission on July 30, 1997, and Current Report on Form 8-K, as
filed with the Commission on May 5, 1997;
(c) The description of the Registrant's common stock, $0.01 par value
(the "Common Stock"), contained in the Registrant's Registration Statement on
Form 8-A (Registration No. 0-14807) filed with the Commission on July 18, 1986
under Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, after the date hereof and prior to the
filing of a post-effective amendment to the Registration Statement which
indicates that all the securities offered hereby have been sold, or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof commencing on the respective dates on which such documents are filed.
ITEM 4. Description of Securities.
Not Applicable.
Item 5. Interest of Named Experts and Counsel.
Not Applicable.
2
<PAGE>
Item 6. Indemnification of Directors and Officers
Section 722 of the New York Business Corporation Law ("NYBCL") permits,
in general, a New York corporation to indemnify any person made, or threatened
to be made, a party to an action or proceeding by reason of the fact that he or
she was a director or officer of the corporation, or served another entity in
any capacity at the request of the corporation, against any judgment, fines,
amounts paid in settlement and reasonable expenses, including attorney's fees
actually and necessarily incurred as a result of such action or proceeding, or
any appeal therein, if such person acted in good faith, for a purpose he or she
reasonably believed to be in, or, in the case of service for another entity, not
opposed to, the best interests of the corporation and, in criminal actions or
proceedings, in addition had no reasonable cause to believe that his or her
conduct was unlawful. Section 723 of the NYBCL permits the corporation to pay in
advance of a final disposition of such action or proceeding the expenses
incurred in defending such action or proceeding upon receipt of an undertaking
by or on behalf of the director or officer to repay such amount as, and to the
extent, required by statute. Section 721 of the NYBCL provides that
indemnification and advancement of expense provisions contained in the NYBCL
shall not be deemed exclusive of any rights to which a director or officer
seeking indemnification or advancement of expenses may be entitled, provided no
indemnification may be made on behalf of any director or officer if a judgment
or other final adjudication adverse to the director or officer establishes that
his or her acts were committed in bad faith or were the result of active or
deliberate dishonesty and were material to the cause of action so adjudicated,
or that he or she personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled.
Article Sixth of the Registrant's Certificate of Incorporation, as
amended, provides that it is the intention of the Registrant to permit a
director to obtain the most beneficial treatment to directors with respect to
protection from and against costs, expenses and liabilities incurred as a result
of service as such, and the benefits of indemnification as may be hereafter
permitted to directors of a New York corporation under the laws of the State of
New York.
In accordance with that provision of the Certificate of Incorporation,
the By-Laws of the Registrant provide that the Registrant shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Registrant) including an action by or in the right of any other
company of any type or kind, domestic or foreign, or any partnership, joint
venture, trust, employee benefit plan or other enterprise which any director or
officer of the Registrant served in any capacity at the request of the
Registrant, by reason of the fact that he, his testator or intestate, is or was
a director or officer of the Registrant, or is or was serving such other
company, partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, amounts paid in settlement
and expenses (including attorneys' fees) actually and reasonably incurred by him
in connection with such action, suit or proceeding or any appeal therein, if he
acted in good faith and in a manner he reasonably believed to be in, or, in the
case of service for any other company or any partnership, joint venture, trust,
employee benefit plan or other enterprise, not opposed to, the best interests of
the Registrant,
3
<PAGE>
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding, whether civil or criminal, by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not in or
of itself, create a presumption that the person did not act in good faith and in
a manner he reasonably believed to be in, or, in the case of service for any
other company or any partnership, joint venture, trust, employee benefit plan or
other enterprise, not opposed to, the best interests of the Registrant, or had
reasonable cause to believe that his conduct was unlawful.
The By-Laws of the Registrant also provide that the Registrant shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, or any
appeal therein, by or in the right of the Registrant to procure a judgment in
its favor by reason of the fact that he, his testator or intestate, is or was a
director or officer of the Registrant, or is or was serving at the request of
the Registrant as a director or officer of another company of any type of kind,
domestic or foreign, of any partnership, joint venture, trust, employee benefit
plan or other enterprise against amounts paid in settlement and expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action, suit or proceeding or
in connection with an appeal therein if he acted in good faith and in a manner
he reasonably believed to be in, or, in the case of service for any other
company or any partnership, joint venture, trust, employee benefit plan or other
enterprise, not opposed to, the best interests of the Registrant, except that no
indemnification shall be made in respect of (1) a threatened action, or a
pending action which is settled or otherwise disposed of, or (2) any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the Registrant, unless and only to the extent that the court in which such
action, suit or proceeding was brought, or if no action, suit or proceeding was
brought, any court of competent jurisdiction shall determine upon application
that, despite the adjudication of liability and in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses and settlement amount which the court shall deem proper.
The indemnification rights referred to above shall not be deemed
exclusive of any other rights to which a director or officer seeking
indemnification may be entitled under any agreement, vote of stockholders or
disinterested directors or otherwise, in connection with any action, suit or
proceeding, civil or criminal, (including an action brought by or on behalf of
the Registrant) by reason of the fact that he, his testator or intestate, is or
was a director or officer of the Registrant, or is or was serving at the request
of the Registrant as a director or officer of another company, of any type of
kind, domestic or foreign, or of any partnership, joint venture, trust, employee
benefit plan or other enterprise, provided that no indemnification may be made
to, or on behalf of, any director or officer if a judgment or other final
adjudication adverse to the director or officer establishes that his acts were
committed in bad faith or were the result of active and deliberate dishonesty
and were material to the cause of action so adjudicated, or that he personally
gained in fact a financial profit or other advantage to which he was not legally
entitled.
The Registrant has the power to purchase and maintain insurance in
connection with the foregoing indemnification provisions.
4
<PAGE>
At present, there is no pending litigation or other proceeding
involving a director or officer of the Registrant as to which indemnification is
being sought, nor is the Registrant aware of any threatened litigation that may
result in claims for indemnification by any officer or director.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits
EXHIBIT DESCRIPTION
NUMBER -----------
- ------
4.1 1997 Stock Incentive Plan.
5 Opinion of Hartman & Craven LLP regarding legality of the
Common Stock being registered.
23.1 Consent of Hartman & Craven LLP (included in their opinion
filed as Exhibit 5).
23.2 Consent of KPMG PEAT MARWICK LLP.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes to:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the information in
the Registration Statement; and
(iii) Include any additional or changed material information
on the plan of distribution.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained
5
<PAGE>
in periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Jericho, State of New York, on October 30, 1997.
AMERICAN CLAIMS EVALUATION, INC.
By: /s/ Gary Gelman
-------------------------------
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Gary Gelman Chairman of the Board of October 30, 1997
- ---------------------- Directors, President and
Gary Gelman Chief Executive Officer
(principal executive officer)
/s/ Gary J. Knauer Chief Financial Officer, October 30, 1997
- ---------------------- Treasurer and Secretary
Gary J. Knauer (principal financial
and accounting officer)
/s/ Edward M. Elkin Director October 30, 1997
- ----------------------
Edward M. Elkin,
M.D.
/s/ Peter Gutman Director October 30, 1997
- ----------------------
Peter Gutmann
7
<PAGE>
EXHIBIT INDEX
Exhibit No. DESCRIPTION
- ----------- -----------
4 1997 Stock Incentive Plan
5 Opinion of Hartman & Craven LLP regarding legality of the Common
Stock being registered
23.1 Consent of Hartman & Craven LLP (included in their opinion filed
as Exhibit 5)
23.2 Consent of KPMG PEAT MARWICK LLP
8
<PAGE>
EXHIBIT 4
1997 STOCK INCENTIVE PLAN
of
AMERICAN CLAIMS EVALUATION, INC.
1. PURPOSES OF THE PLAN.
This stock incentive plan (the "Plan") is designed to provide an
incentive to key employees (including directors and officers who
are key employees), non-employee directors, independent
contractors and consultants of American Claims Evaluation, Inc., a
New York corporation (the "Company"), and its present and future
subsidiary corporations, as defined in Paragraph 19
("Subsidiaries"), and to offer an additional inducement in
obtaining the services of such individuals. The Plan provides for
the grant of (i) "incentive stock options" ("ISOs") within the
meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code") to key employees of the Company (including
directors and officers who are key employees) and (ii) "non
statutory options" ("Nonqualified Options") to key employees of
the Company (including directors and officers who are key
employees), non-employee directors, independent contractors and
consultants of the Company. The Company makes no warranty as to
the qualification of any option as an "incentive stock option"
under the Code.
2. STOCK SUBJECT TO THE PLAN.
Subject to the provisions of Paragraph 12, the aggregate number of
shares of Common Stock, $.01 par value per share, of the Company
("Common Stock") for which options may be granted under the Plan
shall not exceed 750,000. Such shares of Common Stock may, in the
discretion of the Board of Directors of the Company (the "Board of
Directors"), consist either in whole or in part of authorized but
unissued shares of Common Stock or shares of Common Stock held in
the treasury of the Company. The Company shall at all times during
the term of the Plan reserve and keep available such number of
shares of Common Stock as will be sufficient to satisfy the
requirements of the Plan. Subject to the provisions of Paragraph
13, any shares of Common Stock subject to an option which for any
reason expires, is canceled or is terminated unexercised or which
ceases for any reason to be exercisable shall again become
available for the granting of options under the Plan.
<PAGE>
3. ADMINISTRATION OF THE PLAN.
The Plan shall be administered by a committee appointed by the
Board of Directors (the "Committee"). A majority of the members of
the Committee shall constitute a quorum, and the acts of a
majority of the members present at any meeting at which a quorum
is present, and any acts approved in writing by all members
without a meeting, shall be the acts of the Committee.
Subject to the express provisions of the Plan, the Committee shall
have the authority, in its sole discretion, to determine the key
employees, non-employee directors, independent contractors and
consultants who shall receive options; the times when they shall
receive options; whether an option shall be an ISO or a
Nonqualified Option (provided, however, that non-employee
directors, independent contractors and consultants may only
receive Nonqualified Options); the number of shares of Common
Stock to be subject to each option; the term of each option; the
date each option shall become exercisable; whether an option shall
be exercisable in whole, in part or in installments, and, if in
installments, the number of shares of Common Stock to be subject
to each installment; whether the installments shall be cumulative;
the date each installment shall become exercisable and the term of
each installment; whether to accelerate the date of exercise of
any installment; whether shares of Common Stock may be issued on
exercise of an option as partly paid, and, if so, the dates when
future installments of the exercise price shall become due and the
amounts of such installments; the exercise price of each option;
the form of payment of the exercise price; the amount, if any,
necessary to satisfy the Company's obligation to withhold taxes;
whether a Nonqualified Option is transferable and, if so, the
terms of such transfer; whether to restrict the sale or other
disposition of the shares of Common Stock acquired upon the
exercise of an option and to waive any such restriction; whether
to subject the exercise of all or any portion of an option to the
fulfillment of contingencies as specified in the contract referred
to in Paragraph 11 (the "Contract"), including, without
limitation, contingencies relating to entering into a covenant not
to compete with the Company and its Parent and Subsidiaries, to
financial objectives for the Company, a Subsidiary, a division, a
product line or other category, and/or the period of continued
employment of the optionee with the Company, its Parent or its
Subsidiaries, and to determine whether such contingencies have
been met; to construe the respective Contracts and the Plan; with
the consent of the optionee, to cancel or modify an option,
provided such option as modified would be permitted to be granted
on such date under the terms of the Plan; to prescribe, amend and
rescind rules and regulations relating to the Plan; and to make
all other determinations necessary or advisable for administering
the Plan. The determinations of the Committee on the matters
referred to in this Paragraph 3 shall be conclusive.
2
<PAGE>
4. ELIGIBILITY.
The Committee may, consistent with the purposes of the Plan, grant
options from time to time, to key employees, non-employee
directors, independent contractors and consultants (including
directors and officers who are key employees) of the Company or
any of its Subsidiaries. Options granted shall cover such number
of shares of Common Stock as the Committee may determine;
provided, however, that the aggregate market value (determined at
the time the option is granted) of the shares of Common Stock for
which any eligible person may be granted ISOs under the Plan or
any other plan of the Company, or of a Parent or a Subsidiary of
the Company, which are exercisable for the first time by such
optionee during any calendar year shall not exceed $100,000. The
$100,000 ISO limitation shall be applied by taking ISOs into
account in the order in which they were granted. Any option (or
the portion thereof) granted in excess of such amount shall be
treated as a Nonqualified Option.
5. EXERCISE PRICE.
The exercise price of the shares of Common Stock under each option
shall be determined by the Committee; provided, however, that the
exercise price shall not be less than 100% of the fair market
value of the Common Stock subject to such option on the date of
grant; and further provided, that if, at the time an ISO is
granted, the optionee owns (or is deemed to own under Section
424(d) of the Code) stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company, of
any of its Subsidiaries or of a Parent, the exercise price of such
ISO shall not be less than 110% of the fair market value of the
Common Stock subject to such ISO on the date of grant.
The fair market value of the Common Stock on any day shall be (a)
if the principal market for the Common Stock is a national
securities exchange, including the National Market System of
NASDAQ, the last trade on such day as reported by such exchange or
on a consolidated tape reflecting transactions on such exchange,
(b) if the principal market for the Common Stock is not a national
securities exchange and the Common Stock is quoted on the Small
Capitalization market of NASDAQ, and (i) if actual sales price
information is available with respect to the Common Stock, the
average between the high and low sales prices of the Common Stock
on such day on NASDAQ, or (ii) if such information is not
available, the average between the highest bid and the lowest
asked prices for the Common Stock on such day on NASDAQ, or (c) if
the principal market for the Common Stock is not a national
securities exchange and the Common Stock is not quoted on NASDAQ,
the average between the highest bid and lowest asked prices for
the Common Stock on such day as reported on the NASDAQ OTC
Bulletin Board Service or by National Quotation Bureau,
Incorporated or a comparable service; provided that if clauses
(a), (b) and (c) of this Paragraph are all inapplicable, or if no
trades have been made or no quotes are available for such day, the
fair market value of the Common Stock shall be determined by the
Committee by any method consistent with
3
<PAGE>
applicable regulations adopted by the Treasury Department relating
to stock options. The determination of the Committee shall be
conclusive in determining the fair market value of the Common
Stock.
6. TERM.
The term of each option granted pursuant to the Plan shall be such
term as is established by the Committee, in its sole discretion,
at or before the time such option is granted; provided, however,
that the term of each ISO granted pursuant to the Plan shall be
for a period not exceeding 10 years from the date of grant
thereof, and further, provided, that if, at the time an ISO is
granted, the optionee owns (or is deemed to own under Section
424(d) of the Code) stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company, of
any of its Subsidiaries or of a Parent, the term of the ISO shall
be for a period not exceeding five years from the date of grant.
Options shall be subject to earlier termination as hereinafter
provided.
7. EXERCISE.
An option (or any part or installment thereof), to the extent then
exercisable, shall be exercised by giving written notice to the
Company at its principal office (at present One Jericho Plaza,
Jericho, New York 11753, Attn: Secretary), stating which ISO or
Nonqualified Option is being exercised, specifying the number of
shares of Common Stock as to which such option is being exercised
and accompanied by payment in full of the aggregate exercise price
therefor (or the amount due on exercise if the Contract permits
installment payments) (a) in cash or by certified check or (b) if
the Contract (at the time of grant) so permits, with previously
acquired shares of Common Stock having an aggregate fair market
value, on the date of exercise, equal to the aggregate exercise
price of all options being exercised, or with any combination of
cash, certified check or shares of Common Stock.
A person entitled to receive Common Stock upon the exercise of an
option shall not have the rights of a shareholder with respect to
such shares of Common Stock until the date of issuance of a stock
certificate to him for such shares; provided, however, that until
such stock certificate is issued, any option holder using
previously acquired shares of Common Stock in payment of an option
exercise price shall continue to have the rights of a shareholder
with respect to such previously acquired shares.
In no case may a fraction of a share of Common Stock be purchased
or issued under the Plan.
8. TERMINATION OF EMPLOYMENT.
4
<PAGE>
Any holder of an option whose employment with the Company (and its
Parent and Subsidiaries) has terminated for any reason other than
his death or Disability (as defined in Paragraph 19) may exercise
such option, to the extent exercisable on the date of such
termination, at any time within 90 days after the date of
termination, but not thereafter and in no event after the date the
option would otherwise have expired; provided, however, that if
his employment shall be terminated either (a) for cause, or (b)
without the consent of the Company, said option shall terminate
immediately. Options granted under the Plan shall not be affected
by any change in the status of the holder so long as he continues
to be a full-time employee of the Company, its Parent or any of
its Subsidiaries (regardless of having been transferred from one
corporation to another).
For the purposes of the Plan, an employment relationship shall be
deemed to exist between an individual and a corporation if, at the
time of the determination, the individual was an employee of such
corporation for purposes of Section 422(a) of the Code. As a
result, an individual on military, sick leave or other bona fide
leave of absence shall continue to be considered an employee for
purposes of the Plan during such leave if the period of the leave
does not exceed 90 days, or, if longer, so long as the
individual's right to reemployment with the Company (or a related
corporation) is guaranteed either by statute or by contract. If
the period of leave exceeds 90 days and the individual's right to
reemployment is not guaranteed by statute or by contract, the
employment relationship shall be deemed to have terminated on the
91st day of such leave.
Nothing in the Plan or in any option granted under the Plan shall
confer on any individual any right to continue in the employ of
the Company, its Parent or any of its Subsidiaries, or interfere
in any way with the right of the Company, its Parent or any of its
Subsidiaries to terminate the employee's employment at any time
for any reason whatsoever without liability to the Company, its
Parent or any of its Subsidiaries.
9. DEATH OR DISABILITY OF AN OPTIONEE.
If an optionee dies (a) while he is employed by the Company, its
Parent or any of its Subsidiaries, (b) within 90 days after the
termination of his employment (unless such termination was for
cause or without the consent of the Company) or (c) within one
year following the termination of his employment by reason of
Disability, the option may be exercised, to the extent exercisable
on the date of his death, by his executor, administrator or other
person at the time entitled by law to his rights under such
option, at any time within one year after death, but not
thereafter and in no event after the date the option would
otherwise have expired.
Any optionee whose employment has terminated by reason of
Disability may exercise his option, to the extent exercisable upon
the effective date of such termination, at any
5
<PAGE>
time within one year after such date, but not thereafter and in no
event after the date the option would otherwise have expired.
10. COMPLIANCE WITH SECURITIES LAWS.
The Committee may require, in its discretion, as a condition to
the exercise of any option that either (a) a Registration
Statement under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the shares of Common Stock to
be issued upon such exercise shall be effective and current at the
time of exercise, or (b) there is an exemption from registration
under the Securities Act for the issuance of shares of Common
Stock upon such exercise. Nothing herein shall be construed as
requiring the Company to register shares subject to any option
under the Securities Act.
The Committee may require the optionee to execute and deliver to
the Company his representation and warranty, in form and substance
satisfactory to the Committee, that the shares of Common Stock to
be issued upon the exercise of the option are being acquired by
the optionee for his own account, for investment only and not with
a view to the resale or distribution thereof. In addition, the
Committee may require the optionee to represent and warrant in
writing that any subsequent resale or distribution of shares of
Common Stock by such optionee will be made only pursuant to (i) a
Registration Statement under the Securities Act which is effective
and current with respect to the shares of Common Stock being sold,
or (ii) a specific exemption from the registration requirements of
the Securities Act, but in claiming such exemption, the optionee
shall, prior to any offer of sale or sale of such shares of Common
Stock, provide the Company with a favorable written opinion of
counsel, in form and substance satisfactory to the Company, as to
the applicability of such exemption to the proposed sale or
distribution.
In addition, if at any time the Committee shall determine in its
discretion that the listing or qualification of the shares of
Common Stock subject to such option on any securities exchange or
under any applicable law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a
condition to, or in connection with, the granting of an option or
the issue of shares of Common Stock thereunder, such option may
not be exercised in whole or in part unless such listing,
qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Committee.
11. STOCK OPTION CONTRACTS.
Each option shall be evidenced by an appropriate Contract which
shall be duly executed by the Company and the optionee, and shall
contain such terms and conditions not inconsistent herewith as may
be determined by the Committee.
12. ADJUSTMENTS UPON CHANGES IN COMMON STOCK.
6
<PAGE>
Notwithstanding any other provisions of the Plan, in the event of
any change in the outstanding Common Stock by reason of a stock
dividend, recapitalization, merger or consolidation in which the
Company is the surviving corporation, split-up, combination or
exchange of shares or the like, the aggregate number and kind of
shares subject to the Plan, the aggregate number and kind of
shares subject to each outstanding option and the exercise price
thereof shall be appropriately adjusted by the Committee, whose
determination shall be conclusive.
In the event of (a) the liquidation or dissolution of the Company,
(b) a merger or consolidation in which the Company is not the
surviving corporation, or (c) any other capital reorganization in
which more than 50% of the shares of Common Stock of the Company
entitled to vote are exchanged, any outstanding options shall vest
in their entirety and become exercisable within the period of
thirty (30) days commencing upon the date of the action of the
shareholders (or the Board of Directors if shareholders' action
is not required) is taken to approve the transaction and upon the
expiration of that period all options and all rights thereto shall
automatically terminate, unless other provision is made therefor
in the transaction.
13. AMENDMENTS AND TERMINATION OF THE PLAN.
The Plan was adopted by the Committee on February 10, 1997. No
option may be granted under the Plan after February 9, 2007. The
Committee, without further approval of the Company's shareholders,
may at any time suspend or terminate the Plan, in whole or in
part, or amend it from time to time in such respects as it may
deem advisable, including, without limitation, in order that ISOs
granted hereunder meet the requirements for "incentive stock
options" under the Code, to comply with applicable requirements of
the Securities Act and the Securities Exchange Act of 1934, as
amended, and to conform to any change in applicable law or to
regulations or rulings of administrative agencies; provided,
however, that no amendment shall be effective without the
requisite prior or subsequent shareholder approval which would
(a) except as contemplated in Paragraph 12, increase the maximum
number of shares of Common Stock for which options may be granted
under the Plan, (b) materially increase the benefits to
participants under the Plan or (c) change the eligibility
requirements for individuals entitled to receive options
hereunder. No termination, suspension or amendment of the Plan
shall, without the consent of the holder of an existing option
affected thereby, adversely affect his rights under such option.
The power of the Committee to construe and administer any options
granted under the Plan prior to the termination or suspension of
the Plan nevertheless shall continue after such termination or
during such suspension.
14. NON-TRANSFERABILITY OF OPTIONS.
No ISO granted under the Plan shall be transferable otherwise than
by will or the laws of descent and distribution or a qualified
domestic relations order ("QDRO") as defined
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by the Code or Title I of the Employee Retirement Income Security
Act of 1974, as amended, or the rules thereunder, and options may
be exercised, during the lifetime of the holder thereof, only by
him or his legal representatives or pursuant to a QDRO. A
Nonqualified Option shall be transferable to the extent determined
by the Committee and set forth in the Contract. Except to the
extent provided above, options may not be assigned, transferred,
pledged, hypothecated or disposed of in any way (whether by
operation of law or otherwise) and shall not be subject to
execution, attachment or similar process.
15. WITHHOLDING TAXES.
The Company may withhold cash and/or shares of Common Stock to be
issued with respect thereto having an aggregate fair market value
equal to the amount which it determines is necessary to satisfy
its obligation to withhold Federal, state and local income taxes
or other taxes incurred by reason of the grant or exercise of an
option, its disposition, or the disposition of the underlying
shares of Common Stock. Alternatively, the Company may require the
holder to pay to the Company such amount, in cash, promptly upon
demand. The Company shall not be required to issue any shares of
Common Stock pursuant to any such option until all required
payments have been made. Fair market value of the shares of Common
Stock shall be determined in accordance with Paragraph 5.
16. LEGENDS; PAYMENT OF EXPENSES.
The Company may endorse such legend or legends upon the
certificates for shares of Common Stock issued upon exercise of an
option under the Plan and may issue such "stop transfer"
instructions to its transfer agent in respect of such shares as it
determines, in its discretion, to be necessary or appropriate to
(a) prevent a violation of, or to perfect an exemption from, the
registration requirements of the Securities Act, (b) implement the
provisions of the Plan or any agreement between the Company and
the optionee with respect to such shares of Common Stock, or (c)
permit the Company to determine the occurrence of a "disqualifying
disposition," as described in Section 421(b) of the Code, of the
shares of Common Stock transferred upon the exercise of an ISO
granted under the Plan.
The Company shall pay all issuance taxes with respect to the
issuance of shares of Common Stock upon the exercise of an option
granted under the Plan, as well as all fees and expenses incurred
by the Company in connection with such issuance.
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17. USE OF PROCEEDS.
The cash proceeds from the sale of shares of Common Stock pursuant
to the exercise of options under the Plan shall be added to the
general funds of the Company and used for such corporate purposes
as the Committee may determine.
18. SUBSTITUTIONS AND ASSUMPTIONS OF OPTIONS OF CERTAIN
CONSTITUENT CORPORATIONS.
Anything in this Plan to the contrary notwithstanding, the
Committee may, without further approval by the shareholders,
substitute new options for prior options of a Constituent
Corporation (as defined in Paragraph 19) or assume the prior
options of such Constituent Corporation.
19. DEFINITIONS.
a. Subsidiary. The term "Subsidiary" shall have the same
definition as "subsidiary corporation" in Section 424(f) of
the Code.
b. Parent. The term "Parent" shall have the same definition as
"parent corporation" in Section 424(e) of the Code.
c. Constituent Corporation. The term "Constituent Corporation"
shall mean any corporation which engages with the Company, its
Parent or any Subsidiary in a transaction to which Section
424(a) of the Code applies (or would apply if the option
assumed or substituted were an ISO), or any Parent or any
Subsidiary of such corporation.
d. Disability. The term "Disability" shall mean a permanent and
total disability within the meaning of Section 22(e)(3) of the
Code.
20. GOVERNING LAW.
The Plan, such options as may be granted hereunder and all related
matters shall be governed by, and construed in accordance with,
the laws of the State of New York.
21. PARTIAL INVALIDITY.
The invalidity or illegality of any provision herein shall not
affect the validity of any other provision.
22. SHAREHOLDER APPROVAL.
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The Plan shall be subject to approval by the holders of a majority
of the Company's stock outstanding and entitled to vote thereon at
the next meeting of its shareholders. No options granted hereunder
may be exercised prior to such approval, provided that the date of
grant of any options granted hereunder shall be determined as if
the Plan had not been subject to such approval. Notwithstanding
the foregoing, if the Plan is not approved by a vote of the
shareholders of the Company on or before May 6, 1998, the Plan and
any options granted hereunder shall terminate.
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EXHIBIT 5
HARTMAN & CRAVEN LLP
460 Park Avenue
New York, New York 10022
October 30, 1997
American Claims Evaluation, Inc.
One Jericho Plaza
Jericho, New York 11753
Re: 1997 Stock Incentive Plan
-------------------------
Dear Sirs:
We are acting as counsel to American Claims Evaluation, Inc., a
New York corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission (the "Commission") of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"). The Registration Statement
relates to 750,000 shares of the Company's common stock, $0.01 par value per
share ("Common Stock"), which are to be issued pursuant to the Company's 1997
Stock Incentive Plan (the "Plan"). The shares of Common Stock which are to be
issued pursuant to the Plan are hereinafter referred to as the "Shares".
In connection with this opinion, we have examined and relied upon
copies certified or otherwise identified to our satisfaction of: (i) the Plan;
(ii) the Company's Certificate of Incorporation, as amended and By-laws, as
amended; and (iii) the minute books and other records of corporate proceedings
of the Company, as made available to us by officers of the Company; and have
reviewed such matters of law as we have deemed necessary or appropriate for the
purpose of rendering this opinion.
For purposes of this opinion we have assumed the authenticity of
all documents submitted to us as originals, the conformity to originals of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of all documents submitted to us as copies. We
have also assumed the legal capacity of all natural persons, the genuineness of
all signatures on all documents examined by us, the authority of such persons
signing on behalf of the parties thereto other than the Company and the due
authorization, execution and delivery of all documents by the parties thereto
other than the Company. As to certain factual matters material to the opinion
expressed herein, we have relied to the extent we deemed proper upon
representations, warranties and statements as to factual matters of officers and
other representatives of the Company. Our opinion expressed below is subject to
the qualification that we express no opinion as to any law other
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than the laws of the State of New York and the federal laws of the United States
of America. Without limiting the foregoing, we express no opinion with respect
to the applicability thereto or effect of municipal laws or the rules,
regulations or orders of any municipal agencies within any such state.
Based upon and subject to the foregoing qualifications,
assumptions and limitations and the further limitations set forth below, it is
our opinion that the Shares to be issued by the Company pursuant to the Plan
have been duly authorized and reserved for issuance and, when certificates for
the Shares have been duly executed by the Company, countersigned by a transfer
agent, duly registered by a registrar for the Shares and issued and paid for in
accordance with the terms of the Plan, the Shares will be validly issued, fully
paid and non-assessable.
This opinion is limited to the specific issues addressed herein,
and no opinion may be inferred or implied beyond that expressly stated herein.
We assume no obligation to revise or supplement this opinion should the present
laws of the State of New York or the federal laws of the United States of
America be changed by legislative action, judicial decision or otherwise.
We hereby consent to the filing of this letter as an exhibit to
the Registration Statement. In giving such consent, we do not admit that we are
in the category of persons whose consent is required under Section 7 of the Act
or the rules and regulations of the Commission promulgated thereunder.
This opinion is furnished to you in connection with the filing of
the Registration Statement and is not to be used, circulated, quoted or
otherwise relied upon for any other purpose.
Very truly yours,
/s/ HARTMAN & CRAVEN LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
American Claims Evaluation, Inc.:
We consent to incorporation by reference in the Registration Statement on Form
S-8 of American Claims Evaluation, Inc. of our report dated May 30, 1997,
relating to the consolidated balance sheets of American Claims Evaluation, Inc.
and subsidiary as of March 31, 1997 and 1996, the related statements of
earnings, stockholders' equity and cash flows for each of the years in the
three-year period ended March 31, 1997, which report appears in the March 31,
1997 annual report on Form 10-K of American Claims Evaluation, Inc.
KPMG PEAT MARWICK LLP
Jericho, New York
October 2, 1997
