<TABLE>
As filed with the Securities and Exchange Commission on November 30, 1999
Registration No. 333 -
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-3
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 (I.R.S. Employer Identification No.)
of incorporation or organization)
146 Nassau Avenue, Islip, New York, 11751, (631) 968-2000
(Address, including zip code, and telephone number of registrant's principal
executive offices)
Asher S. Levitsky P.C.
Esanu Katsky Korins & Siger, LLP
605 Third Avenue
New York, New York 10158
(212) 953-6000
Fax: (212) 953-6899
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Mr. James L. Conway, President and Chief Executive Officer
Netsmart Technologies, Inc.
146 Nassau Avenue
Islip, New York 11751
(516) 968-2000
Fax: (516) 968-2123
Approximate date of commencement of proposed sale to the public: As soon as
practical on or after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered of this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Proposed Proposed
Title of securities maximum maximum
to be Amount to be offering price aggregate Amount of
registered registered per unit(1) offering price(1) registration fee
- ---------------------------------------------------------------------------------------------
Common Stock, par 856,026 shares(2) $9.03 $7,729,932.80 $2,148.92
value $.01 per share
- ----------
(1) Estimated solely for the purpose of calculating the registration fee,
in accordance with Rule 457(c) under the Securities Act of 1933, as
amended, on the basis of the average exercise price of warrants. All
shares of common stock are issuable pursuant to the warrants.
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<PAGE>
(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 the warrants.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effectiveness until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to Section 8(a), may determine.
<PAGE>
PROSPECTUS
856,026 Shares
NETSMART TECHNOLOGIES, INC.
Common Stock
Nasdaq SmallCap Market Trading Symbol: NTST
The selling stockholders may sell up to 856,026 shares of common stock
from time to time. These selling stockholders may sell their shares
* On the Nasdaq SmallCap Market.
* To a broker-dealer, including a market maker, who purchases
the shares for its own account.
* In private transactions or by gift.
The selling stockholders may also:
* pledge their shares from time to time, and the lender may sell
the shares upon foreclosure.
* sell their warrants in a private transaction or transfer them
as a gift, and the purchasers of the warrants may exercise the
warrants and sell the underlying shares of common stock.
The shares are being offered by the selling stockholders and are
issuable upon exercise of outstanding warrants held by the selling stockholders.
We will only receive proceed from the exercise of the warrants. We will not
receive any proceeds from the sale by the selling stockholders of their shares
of common stock. We will pay the cost of the preparation of this prospectus,
which is estimated at $10,000.
---------------
Investing in shares of our common stock involves a high degree of risk. You
should purchase the shares only if you can afford to lose your entire
investment. See "Risk Factors," which begins on page 3.
---------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined whether
this Prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is November 30, 1999
<PAGE>
AVAILABLE INFORMATION
We file annual, quarter and periodic reports, proxy statements and
other information with the Securities and Exchange Commission using the EDGAR
system. You may read and copy any material we file with the SEC at the SEC's
Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. You may
obtain information on the operation of the Public Reference Room by calling the
SEC at 1-800-SEC-0330. The SEC maintains an Internet site that contains reports,
proxy and information statements and other information regarding issues that
file electronically with the SEC. The address of such site is http//www.sec.gov.
We have filed a registration statement with the SEC relating to the
offering of the shares. The registration statement contains information which is
not included in this prospectus. You may inspect or copy the registration
statement at the SEC's Public Reference Room or its Internet site.
We furnish our stockholders with annual reports containing audited
financial statements and with such other periodic reports as we from time to
time deem appropriate or as may be required by law. We use the calendar year as
our fiscal year.
You should rely only on the information contained in this Prospectus
and the information that we have referred you to. We have not authorized any
person to provide you with any information that is different.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We have filed the following documents with the SEC. We are
incorporating these documents in this Prospectus, and they are a part of this
Prospectus.
(1) Our Annual Report on Form 10-K for the year ended December 31,
1998, which we amended by three amendments on Form 10-K/A;
(2) Our Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1999, June 30, 1999 and September 30, 1999;
(3) Our Proxy Statement for our 1999 Annual Meeting of
Stockholders;
(4) Our Current Report on Form 8-K, dated March 25, 1999, which we
filed with the SEC on March 30, 1999; and
(5) Our registration statement on Form 8-A, which became
effective on August 13, 1996.
We are also incorporating by reference in this Prospectus all documents
which we file pursuant to Section 13(a), 13(c), 14 or 15 of the Securities
Exchange Act of 1934, as amended, after the date of this Prospectus. Such
documents are incorporated by reference in this Prospectus and are a part this
Prospectus from the date we file the documents with the SEC.
If we file with the SEC any document that contains information which is
different from the information contained in this Prospectus, you may rely only
on the most recent information which we have filed with the SEC.
We will provide a copy of the documents referred to above without
charge if you request the information from us. However, we may charge you for
the cost of providing any exhibits to any of these documents unless we
specifically incorporate the exhibits in this Prospectus. You should contact Mr.
Anthony F. Grisanti, Chief Financial Officer, Netsmart Technologies, Inc., 146
Nassau Avenue, Islip, New York 11751, telephone (516) 968-2000, if you wish to
receive any of such material.
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<PAGE>
RISK FACTORS
This prospectus contains statements that plan or anticipate the future.
Forward-looking statements include statements about our future business plans
and strategies and the market for our products and most other statements that
are not historical in nature. In this prospectus, forward-looking statements are
generally identified by the words "anticipate," "plan," "believe," "expect,"
"estimate" and similar words. Because forward-looking statements involve future
risks and uncertainties, there are factors that could cause actual results to
differ materially from those expressed or implied, including, but not limited
to, those identified under "Risk Factors" in this prospectus and in our Form
10-K for 1998, those described in Management's Discussion and Analysis of
Financial Conditions and Results of Operations in our Form 10-K for 1998 and our
Form 10-Q for the quarter ended September 30, 1999, and those described and in
any other filings which are incorporated by reference in this prospectus, as
well as general economic conditions.
An investment in our common stock involves a high degree of risk. You
should consider carefully, along with other factors, the following risks and
should consult with your own legal, tax and financial advisors.
We require additional capital.
------------------------------
We had working capital of $1.4 million at September 30, 1999. Our cash
position decreased from $199,000 at December 31, 1998 to $80,000 at September
30, 1999. We require substantial additional capital in order to expand and
develop our business and perform our obligations under our agreements and
purchase orders. We have no commitments from any person to provide us with
any such capital. Our business may suffer significantly if we do not obtain the
capital when it is required.
We are dependent upon government contracts.
----------------------------------------------
We market our health information systems principally to behavioral
health care facilities, many of which are operated by government entities
and include entitlement programs. During 1998, we generated 52% of our
revenue from contracts with government agencies, as compared with 35% in 1997
and 31% in 1996. Government agencies generally have the right to cancel
contracts at their convenience.
Our business is subject to the effect of technological advances and
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possible product obsolescence.
-----------------------------
Our customers require software which enables them to store, retrieve
and process very large quantities of data and to provide them with instantaneous
communications among the various data bases. Our business requires us to take
advantage of recent advances in software, computer and communications
technology. This technology has been developing at rapid rates in recent years,
and our future may be dependent upon our ability to use and develop or
obtain rights to products utilizing such technology. New technology may
develop in a manner which may make our software obsolete. Our inability to
use new technology would have a significant adverse effect upon our business.
Our industry is highly competitive.
----------------------------------
Our customers in the human services market include entitlement programs,
managed care organizations, specialty care facilities and other major
information technology users which have a need for access to information over
a distributed data network. The software industry in general, and the health
information software business in particular, are highly competitive. Other
companies have the staff and resources to develop competitive systems. We may
not be able to compete successfully with such competitors.
The health information systems business is served by a number of major
companies and a larger number of smaller companies, many of which are better
capitalized, better known and have better marketing staffs than we have, and we
may not be able to compete effectively with such companies. We believe that
price competition is a significant factor in our ability to market our health
information systems and services.
We depend on our management.
---------------------------
Our business is largely dependent upon our senior executive officers, Messrs.
James L. Conway, president and chief executive officer, Anthony F.
Grisanti, chief financial officer, John F. Philips, vice president --
marketing, and Gerald O. Koop, vice president of the Company and chief
executive officer of our operating subsidiary, Creative Socio-Medics Corp.
We have employment agreements with Messrs. Conway, Grisanti, Phillips and Koop.
Our business may be adversely affected if any of our key management personnel
or other key employees left our employ.
We lack patent protection.
--------------------------
We have no patent or copyright protection for our proprietary software.
We are subject to the effect of government regulations of health care
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industry.
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We derive substantially all of our revenue from our health information
systems and services. The federal and state governments have adopted numerous
regulations relating to the health care industry, including regulations relating
to the payments to health care providers for various services. The adoption of
new regulations can have a significant effect upon the operations of health care
providers, particularly those operated by state agencies. We cannot predict the
effect on our business of future regulations by governments and payment
practices by government agencies. Furthermore, changes in state regulations in
the health care field may force us to modify our health information systems to
meet any new record-keeping or other requirements. If that happens, we may not
be able to generate revenues sufficient to cover the costs of developing the
modifications. In addition, we may lose business if government agencies reduce
funding for entitlement programs.
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<PAGE>
<TABLE>
We may not be able to carry out our growth strategy if we cannot make
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future acquisitions.
--------------------
An important part of our strategy is to grow through acquisitions
of other businesses that are related to our current business. Such acquisitions
may be made with cash or our securities or a combination of cash and
securities. To the extent that we require cash, we may have to borrow the funds
or issue equity. We have no commitments from any financing source and we may
not be able to raise any cash necessary to complete an acquisition. If we
fail to make any acquisitions, our future growth may be limited.
Acquisitions may disrupt or have a negative impact on our business.
------------------------------------------------------------------
If we make acquisitions, we could have difficulty integrating
the acquired companies' personnel and operations with our own. In addition, the
key personnel of the acquired business may not be willing to work for us. We
cannot predict the affect expansion may have on our core business. Regardless
of whether we are successful in making an acquisition, the negotiations could
disrupt our ongoing business, distract our management and employees and increase
our expenses.
We do not anticipate paying dividends on our common stock.
---------------------------------------------------------
We presently intend to retain future earnings, if any, in order to
provide funds for use in the operation and expansion of our business and,
accordingly, we do not anticipate paying cash dividends on our Common Stock in
the foreseeable future.
The rights of the holders of common stock may be impaired by the
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potential issuance of preferred stock.
- --------------------------------------
Our certificate of incorporation gives our board of directors the right
to create new series of preferred stock. As a result, the board of directors
may, without stockholder approval, 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. The possible impact on takeover attempts
could adversely affect the price of our common stock. Although we have no
present intention to issue any additional shares of preferred stock or to
create any series of preferred stock, we may issue such shares in the future. If
we issue preferred stock in a manner which dilutes the voting rights of the
holders of the common stock, our listing on The Nasdaq SmallCap Market may be
impaired.
Shares may be issued pursuant to options.
-----------------------------------------
We may issue stock upon the exercise of options to purchase up to an
aggregate 299,192 shares of common stock pursuant to our long-term incentive
plans. In November 1998, we amended one of our plans to increase the number of
shares of common stock subject to the plans by 500,000 and we granted options
for all of those shares, subject to stockholder approval of the amendment to
the plan.
USE OF PROCEEDS
The Company intends to utilize any net proceeds received from the
exercise of the warrants for working capital and other corporate purposes. Since
there is no assurance that any warrants will be exercised. We believe that the
net proceeds are likely to range from zero to approximately $3.1 million. This
estimate assumes that warrants to purchase 488,563 shares at $12.00 per share,
which expire on December 31, 1999, expire unexercised.
If any warrants are exercised, our management will have broad
discretion to determine the use the proceeds. In the event that the Company
determines that it is unable to develop a profitable business, the Company may
use the proceeds from this Offering to engage in other unrelated businesses,
although it has no such intention at this time.
SELLING STOCKHOLDERS
The following table sets forth (i) the name of each selling
stockholder, (ii) the nature of any position, office or other material
relationship, if any, which each selling stockholder has had with the Company or
any of its affiliates within the last three years, (iii) the number of shares of
Common Stock owned by each selling stockholder prior to the offering, (iv) the
number of shares of Common Stock offered for each selling stockholder's account
and (v) the percentage owned by each selling stockholder after completion of the
offering.
<S> <C> <C> <C> <C>
Number Number of
of Shares Shares Offered Number of Percentage
Owned Prior For Account of Shares Owned Owned
Selling Stockholder to Offering(1) Selling Stockholder(2) After Offering After Offering
- ------------------- ------------- --------------------- -------------- --------------
Lewis S. Schiller(3) 105,553 105,553 0 --
Storm R. Morgan(4) 88,166 87,500 666 *
Barbara Dyson 1,916 1,916 0 --
Kennan Kroll 1,000 1,000 0 --
Mike Libbee and Cindy Libbee 10,555 10,555 0 --
- 4 -
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Number Number of
of Shares Shares Offered Number of Percentage
Owned Prior For Account of Shares Owned Owned
Selling Stockholder to Offering(1) Selling Stockholder(2) After Offering After Offering
- ------------------- ------------- --------------------- -------------- --------------
Raj R. Doodnauth 6,749 6,749 0 --
William Giblin 1,916 1,916 0 --
Bettyjean Kroll 2,166 2,166 0 --
James L. Conway(5) 199,582 51,333 124,333 4.1%
Geraldine Conway(5) 199,582 23,916 124,333 4.1%
James L. Conway, Jr. 5,000 5,000 -- --
Teresa Conway McTigue 5,000 5,000 -- --
Joanna Flecken 1,666 1,666 -- --
John Avena 1,196 666 530 *
Leonard M. Luttinger(6) 52,083 52,083 -- --
Thomas L. Evans 12,500 12,500 -- --
Joel Brown 38,888 38,888 -- --
E. Gerald Kay(7) 38,888 38,888 -- --
DLB, Inc. 41,319 41,319 -- --
Norman Hoskin(7) 19,444 19,444 -- --
Martin Hodas 35,444 19,444 16,000 *
Grazyna B. Wnuk 19,444 19,444 -- --
Ronald Feldstein 14,166 14,166 -- --
Elliot Davis, Inc. 14,166 14,166 -- --
Harold Halperin 833 833 -- --
Saggi Capital Corp. 78,958 78,958 -- --
SMACS Holdings, Inc. 38,541 38,541 -- --
Bridge Ventures, Inc. 40,416 40,416 -- --
Henry Uffmann 2,333 2,000 333 *
Dominick & Dominick LLC(8) 100,000 100,000 -- --
Emerging Technology
Ventures, Inc.(9) 20,000 20,000 -- --
- ----------
* Less than 1%.
(1) Includes with respect to each person named, the shares of common stock
issuable upon exercise of the warrants held by such person. The number
of shares issuable upon exercise of the warrants is the number of
shares listed in the column headed "Number of Shares Offered For
Account of Selling Stockholder."
(2) The shares of common stock being sold pursuant to this prospectus are
issuable upon the exercise of warrants. Except for the warrants issued
or issuable to Dominick & Dominick LLC and Emerging Technology
Ventures, Inc., which are described in notes 8 and 9 to this table, the
warrants expire on December 31, 1999 and are exercisable at $6.00 per
share, as to 287,491 shares, and $12.00 per share, as to 448,535
shares.
(3) Mr. Schiller was our chairman of the board and chief executive prior to
April 1998. In connection with his resignation, we exchanged general
releases with Mr. Schiller.
(4) Mr. Morgan was a director from 1996 until June 1998. We has an informal
consulting agreement with SMI, Inc., a corporation of which Mr. Morgan
was the sole stockholder and an officer and director. In June 1998, we
sold our CarteSmart business to a corporation formed by Mr. Morgan and
Mr. Leonard M. Luttinger.
(5) Mr. Conway has been our president and a director since January 1996 and
our chief executive officer since April 1998. From 1993 until April
1998, he was president of S-Tech, which, until April 1998, was a
wholly-owned subsidiary of Sagemark Companies Ltd. Shares owned by Mr.
Conway and Geraldine Conway, Mr. Conway's wife, include (a) 70,000
shares of Common Stock issuable upon exercise of options owned by Mr.
Conway, (b) 51,333 shares of common stock issuable upon exercise of the
warrants held by Mr. Conway, and (c) 23,916 shares of common stock
issuable upon exercise of warrants held by Mrs. Conway. Mr. and Mrs.
Conway each disclaims beneficial interest in the securities owned by
the other. Shares included under the heading "Number of Shares Offered
for the Account of Selling Stockholder" include only the shares held by
Mr. or Mrs. Conway, as the case may be.
- 5 -
</TABLE>
<PAGE>
(6) Mr. Luttinger was a director and executive officer until June 1998.
In June 1998, we sold our CarteSmart business to a corporation formed
by Mr. Luttinger and Mr. Storm R. Morgan.
(7) Messrs. Kay and Hoskin were members of our board of directors prior to
April 1998. In connection with their resignation we exchanged general
releases with them.
(8) Represents shares of common stock issuable upon exercise of warrants
issued or issuable to Dominick & Dominick LLC pursuant to an agreement
with us. The warrants are issuable in installments and are exercisable
at $5.45 per share until October 4, 2004. The shares owned by Dominick
& Dominick LLC do not include any shares which that firm may own in its
capacity as a market maker. See "Plan of Distribution."
(9) Represents shares of common stock issuable upon exercise of warrants
issued or issuable to Emerging Technology Ventures, Inc. pursuant to an
agreement with us. The warrants are issuable in installments and are
exercisable at $4.20 per share until October 4, 2004.
PLAN OF DISTRIBUTION
The selling stockholders named under the caption "Selling Stockholders"
may sell up to 856,026 shares of common stock from time to time. These selling
stockholders may sell their shares
* On the Nasdaq SmallCap Market.
* To a broker-dealer, including a market maker, who purchases
the shares for its own account.
* In private transactions or by gift.
The selling stockholders may also:
* pledge their shares from time to time, and the lender may sell
the shares upon foreclosure.
* sell their warrants in a private transaction or transfer them
as a gift, and the purchasers of the warrants may exercise the
warrants and sell the underlying shares of common stock.
The shares of common stock offered by the selling stockholders are
issuable upon exercise of warrants held by the selling stockholders. None of
such warrants have been exercised as of the date of this prospectus.
The selling stockholders may sell the shares at a negotiated price or
at the market price or both. They may sell their shares directly to the
purchasers or they may use brokers. If they use a broker, the selling
stockholders may pay a brokerage fee or commission or they may sell the shares
to the broker at a discount from the market price. The purchasers of the shares
may also pay a brokerage fee or other charge. The compensation to a particular
broker-dealer may exceed customary commissions. We do not know of any
arrangements by any of the selling stockholders for the sale of any of their
shares.
The selling stockholders and broker-dealers, if any, acting in
connection with sales by the selling stockholders may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act, and
any commission received by them and any profit on the resale by them of the
securities may be deemed to be underwriting discounts and commissions under the
Securities Act.
Dominick & Dominick LLC, one of the selling stockholders, is a
registered broker-dealer and presently makes a market in our stock. This firm
may continue to make a market in our stock. However, as long as a distribution
is taking place and to the extent that Dominick & Dominick continues to make a
market in our stock, Dominick & Dominick will designate itself as a "passive
market maker" under Regulation M of the Exchange Act and will limit its market
making activities in accordance with applicable regulations.
We have advised the selling stockholders that the anti-manipulative
rules under the Exchange Act, which are set forth in Regulation M, may apply to
their sales in the market. We have furnished the selling stockholders with a
copy of Regulation M, and we have informed them that they should deliver a copy
of this prospectus when they sell any shares.
LEGAL MATTERS
The validity of the common stock offered hereby has been passed upon by
our counsel, Esanu Katsky Korins & Siger, LLP. An attorney who is of counsel at
such firm and the defined benefit plan for such attorney own a total of 4,000
shares of common stock.
- 6 -
<PAGE>
EXPERTS
The consolidated financial statements incorporated by reference in this
prospectus to the extent and for the periods indicated in their reports have
been audited by Richard A. Eisner & Company, LLP , independent certified public
accountants, and Moore Stephens, P.C., independent certified public accountants,
and are included herein in reliance upon the authority of such firms as experts
in accounting and auditing in giving such reports.
- 7 -
<PAGE>
PART II
INFORMATION REQUESTED IN THE REGISTRATION STATEMENT
Item 14. Other Expenses of Issuance and Distribution.
-------------------------------------------
The Registrant estimates that the legal, accounting and filing fees
relating to this Registration Statement will be approximately $10,000.
Item 15. Indemnification of Officers and Directors.
-----------------------------------------
Under the Delaware General Corporation Law, a corporation may indemnify
any director, officer, employee or agent against expense (including attorneys'
fees), judgments, fines and amounts paid in settlement in connection with any
specified 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 corporation) if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal proceeding, had no reasonable
cause to believe that his or her conduct was unlawful.
Article EIGHTH of the Registrant's Restated Certificate of
Incorporation provide for indemnification of directors and officers of the
Registrant to the fullest extent permitted by the Delaware General Corporaiton
Law.
We also maintain directors and officers liability insurance. This
insurance covers any person who has been or is an officer or director of us or
any of our subsidiaries for all expense, liability and loss (including
attorneys' fees, investigation costs, judgments, fines, penalties and amounts
paid or to be paid in settlement) actually and reasonably incurred by such
person in connection with such action, suit or proceeding, net of the
deductible.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or controlling persons of the
Registrant, pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that, in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Securities
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 hereunder, 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
Securities Act and will be governed by the final adjudication of such issue.
Item 16. Exhibits
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5.1 Opinion of Esanu Katsky Korins & Siger, LLP.(1)
23.1 Consent of Richard A. Eisner & Company, LLP (Page II-5)
23.2 Consent of Moore Stephens, P.C. (Page II-6)
23.3 Consent of Esanu Katsky Korins & Siger, LLP (contained in
Exhibit 5.1)
24.1 Power of Attorney (included on the signature page).
- ----------
(1) To be filed by amendment.
Item 17. Undertakings.
------------
(a) The undersigned registrant hereby undertakes:
(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 Securities Act of
1933, as amended (the "Securities 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. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high end of the estimated
II-1
<PAGE>
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than a 20% change in
the maximum aggregate offering price set
forth in the "Calculation of Registration
Fee" table in the effective 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 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.
(b) 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 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.
(h) Insofar as indemnification for liabilities arising under the
Securities 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
Securities 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 Securities Act and will be governed by the
final adjudication of such issue.
II-2
<PAGE>
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-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Islip, State of New York on this 29th day of
November, 1999.
NETSMART TECHNOLOGIES, INC.
By: /s/ James L. Conway
--------------------------
James L. Conway, President and
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 on behalf
of the registrant and in the capacities and on the dates indicated. Each person
whose signature appears below hereby authorizes James L. Conway and Anthony F.
Grisanti or either of them acting in the absence of the others, 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 Securities and Exchange
Commission.
Signature Title Date
- --------- ----- ----
/s/ James L. Conway President,
- --------------------- Chief Executive Officer November 29, 1999
James L. Conway and Director
(Principal Executive Officer)
/s/Anthony F. Grisanti Chief Financial Officer November 29, 1999
- ----------------------
Anthony F. Grisanti
(Principal Financial
and Accounting Officer)
/s/Edward D. Bright Director November 29, 1999
- -----------------------
Edward D. Bright
/s/John F. Phillips Director November 29, 1999
- -----------------------
John F. Philips
/s/ Gerald O. Koop Director November 29, 1999
- -----------------------
Gerald O. Koop
- ----------------------- Director
Joseph G. Sicinski
II-3
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of our report dated March 23, 1999 (with respect to Note 17, April
8, 1999) with respect to the financial statements of Netsmart Technologies, Inc.
(the "Company"), which was included in the Company's Annual Report on Form 10-K
for the year ended December 31, 1998, as amended on Form 10-K/A, and to the
reference to our firm under the heading "Experts" in the prospectus.
RICHARD A. EISNER & COMPANY, LLP
New York, New York
November 30, 1999
II-4
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the use in this Registration Statement on Form S-3 of our
report dated March 26, 1998 [Except for Note 19, as to which the date is April
2, 1998], the financial statements of Netsmart Technologies, Inc. (the
"Company"), which was included in the Company's Annual Report on Form 10-K for
the year ended December 31, 1998 and incorporated by reference in this
registration statement, and to the use of our name, and the statements with
respect to us as appearing under the heading "Experts" in the Prospectus.
MOORE STEPHENS, P.C.
Cranford, New Jersey
November 30, 1999
II-5
<PAGE>
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<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AND THE CONSOLIDATED STATEMENT OF OPERATIONS
FILED AS PART OF THE QUARTERLY REPORT ON FORM 10-Q AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH QUARTERLY REPORT ON FORM 10-Q.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1999
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