As filed with the Securities and Exchange Commission on , 1997
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Registration No. 333 -
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NETSMART TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3680154
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
146 Nassau Avenue, Islip, N.Y. 11751
(Address of Principal Executive Offices) (Zip Code)
1993 Long Term Incentive Plan
(Full title of Plan)
Asher S. Levitsky P.C.
Esanu Katsky Korins & Siger
605 Third Avenue
New York, NY 10158
(212) 953-6000
(Name, address and telephone number, including area code of agent for service)
Copies to:
Lewis S. Schiller, Chief Executive Officer
Netsmart Technologies, Inc.
146 Nassau Avenue
Islip, NY 11751
(516) 968-2000
Fax: (516) 968-2123
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of securities maximum maximum
to be Amount to be offering price aggregate Amount of
registered registered per unit1 offering price registration fee
Common Stock, 511,0002 $0.878 $448,834.97 $136.01
$.01 par value ...
1 Estimated solely for the purpose of calculating the registration fee, in
accordance with Rule 457(c), promulgated under the Securities Act of 1933,
as amended, on the basis of the average exercise price of outstanding
options and closing price of the Common Stock on May 15, 1997, which was
$4.00 per share, for the options available for grant.
2 Pursuant to Rule 416, there are also being registered additional shares of
Common Stock as may be required pursuant to the antidilution provisions of
Registrant's 1993 Long Term Incentive Plan (the "Plan").
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in this Item 1 will be
sent or given to employees, directors or other participants in the Plan, as the
case may be, as specified by Rule 428(b)(1) under the Securities Act of 1933, as
amended (the "Act"). In accordance with the rules and regulations of the
Securities and Exchange Commission (the "Commission") and the instructions to
Form S-8, such documents are not being filed with the Commission either as part
of this registration statement (the "Registration Statement") or as prospectuses
or prospectus supplements pursuant to Rule 424 under the Act.
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in this Item 2 will be
sent or given to employees, directors or other participants in the Plan, as the
case may be, as specified by Rule 428(b)(1) under the Act. In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission are hereby incorporated
by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996; and
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997.
In addition, all documents subsequently filed with the Commission by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, (the "Exchange Act") prior to the filing of a
post-effective amendment which indicates that all securities offered herein have
been sold or which de-registers 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 respective dates of filing of such documents.
Item 4Description of Securities.
Each share of the Registrant's Common Stock, par value $.01 per share (the
"Common Stock"), currently outstanding is fully paid and nonassessable. Holders
of Common Stock are entitled to one vote for each share held of record on all
matters submitted to a vote of stockholders. Holders of Common Stock are
entitled to share in such dividends as the Board of Directors of the Registrant
(the "Board of Directors"), in its discretion, may declare from funds legally
available. In the event of liquidation, each outstanding share of Common Stock
entitles its holder to participate ratably in the assets remaining after payment
of liabilities.
Stockholders have no preemptive or other rights to subscribe for or
purchase additional shares of any class of stock or of any securities of the
Registrant, and there are no redemption or sinking fund provisions with regard
to the Common Stock. Holders of Common Stock do not have cumulative voting
rights.
The Registrant's certificate of incorporation authorizes the issuance of
so-called "blank check" preferred stock with the Board of Directors having the
right to determine the designations, rights, preferences and privileges of the
holders of one or more series of Preferred Stock of the Registrant. Accordingly,
the Board of Directors is empowered, without stockholder approval, to issue
Preferred Stock with voting, dividend, conversion, liquidation or other rights
which could adversely affect the voting power and equity interest of the holders
of Common Stock. The Preferred Stock, which could be issued with the right to
more than one vote per share, could be utilized as a method of discouraging,
delaying or preventing a change of control of the Registrant.
Item 5Interest of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law and Article EIGHTH of
the Registrant's Restated Certificate of Incorporation provide for
indemnification of directors and officers of the Registrant under certain
circumstances.
Item 7Exemption from Registration Claimed.
Not applicable.
Item Undertakings.
(a) The undersigned Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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 the
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 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 the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 Islip, State of New York on this 30th day of May,
1997.
NETSMART TECHNOLOGIES, INC.
/s/ Lewis S. Schiller
Lewis S. Schiller
Chief Executive Officer
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 and on the dates indicated. Each person whose signature appears below
hereby authorizes Lewis S. Schiller as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution for him and in his
name, place and stead, in any and all capacities to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Commission.
Signature Title Date
/s/ Lewis S. Schiller Chairman of the Board May 30 , 1997
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Lewis S. Schiller Chief Executive Officer
and Director
(Principal Executive
Officer)
/s/ Anthony F. Grisanti Chief Financial Officer May 30 , 1997
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Anthony F. Grisanti Treasurer and Secretary
(Principal Financial and
Accounting Officer)
/s/ James L. Conway Director May 30 , 1997
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James L. Conway
/s/ Leonard M. Luttinger Director May 30 , 1997
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Leonard M. Luttinger
/s/ John F. Phillips Director May 30 , 1997
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John F. Phillips
/s/ Storm R. Morgan Director May 30 , 1997
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Storm R. Morgan
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INDEX TO EXHIBITS
Exhibit Nos. Description of Exhibits
** 3.1 Restated Certificate of Incorporation, as amended.
* 5.1 Opinion of Esanu Katsky Korins & Siger.
** 10.7 The Registrant's 1993 Long Term Incentive Plan.
* 23.1 Consent of Moore Stephens, P.C.
* 23.2 Consent of Esanu Katsky Korins & Siger (included
in Exhibit 5.1).
* Filed herewith.
** Incorporated by reference to the Registration Statement 333-2550 on
Form S-1.
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Exhibit 5.1
Letterhead of Esanu Katsky Korins & Siger
May 29, 1997
Netsmart Technologies, Inc. 13146-02
146 Nassau Avenue
Islip, New York 11751
Re: Registration Statement on Form S-8
Gentlemen:
This opinion is delivered in connection with the Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Act"), being filed by Netsmart Technologies, Inc., a
Delaware corporation (the "Company"), with the Securities and Exchange
Commission for registration of 511,000 shares of the Company's common stock,
$.01 par value per share (the "Common Stock")issuable pursuant to the Company's
1993 Long-Term Incentive Plan (the "Plan").
We have examined the originals, photocopies, certified copies or
other evidence of such records of the Company, certificates of officers of the
Company and public officials, and other documents as we have deemed relevant and
necessary as a basis for the opinion hereinafter expressed. In such examination,
we have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as certified copies or photocopies and the
authenticity of the originals of such latter documents.
Based on our examination mentioned above, we are of the opinion that
the shares of Common Stock being registered pursuant to the Registration
Statement, when duly issued against receipt of the specified purchase price
therefor in accordance with the Company's 1993 Long Term Incentive Plan, as in
effect on the date hereof, will be legally issued, fully paid and nonassessable.
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We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
.
Very truly yours,
ESANU KATSKY KORINS & SIGER
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Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders of
Netsmart Technologies, Inc.
New York, New York
We hereby consent to the incorporation by reference in this Form S-8
Registration Statement of our report dated March 6, 1997, except as to Note 5
for which the date is April 8, 1997 on the consolidated financial statements
included or incorporated by reference in the Netsmart Technologies, Inc. annual
report on Form 10K for the year ended December 31, 1996.
MOORE STEPHENS, P.C.
Certified Public Accountants.
Cranford, New Jersey
May 30, 1997
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