<TABLE>
As filed with the Securities and Exchange Commission on February 2, 2000
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, New York 11751
(Address of Principal Executive Offices) (Zip Code)
1998 Long-Term Incentive Plan
(Full Title of Plan)
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
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 offering price registration fee
- --------------------------------------------------------------------------------------------------
Common Stock, par 500,000 shares $1.00 (1) $500,000 $139.00
value $.01 per share
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(1) Based on the exercise price of the options granted under the amendment
to the 1998 Long-Term Incentive Plan which increased the number of
shares subject to the plan by 500,000 shares.
This Registration Statement also serves as Post-Effective Amendment No. 1 to
Registration Statement on Form S-8, File No. 333-71549, which covered the
Registrant's 1998 Long-Term Incentive Plan, and Post-Effective Amendment No. 2
to the Registration Statement on Form S-8, File No. 333-28287, which covered the
Registrant's 1993 Long-Term Incentive Plan.
</TABLE>
<PAGE>
PROSPECTUS
522,888 Shares
NETSMART TECHNOLOGIES, INC.
Common Stock
Nasdaq SmallCap Market Trading Symbol: NTST
The selling stockholders may sell up to 522,888 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.
The shares are being offered by the selling stockholders have been
issued or are issuable upon exercise of outstanding options warrants held by the
selling stockholders. We will only receive proceed if any options are exercised.
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 $5,000.
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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.
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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 January 2, 2000
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<PAGE>
TABLE OF CONTENTS
Page
----
Risk Factors 2
Use of Proceeds 4
Selling Stockholders 4
Plan of Distribution 6
Available Information 6
Incorporation of Certain Documents by Reference 7
Legal Matters 7
Experts 7
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.
If we are unable to obtain additional capital, we may not be able to
develop our business and perform our contract obligations. 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.
Because we are dependent upon government contracts, our business may be
impaired by policies relating to entitlement programs. 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. In addition,
we may lose business if government agencies reduce funding for entitlement
programs.
Our business is based on providing systems relating to behavioral health
organizations, and changes in government regulation of health care industry may
affect the market for our systems. 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, and our systems are designed to provide
information based on these requirements. 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 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.
If we are not able to take advantage of technological advances, our
business may suffer. 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.
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<PAGE>
Because of our size, we may have difficulty competing with larger
companies that offer similar services. 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.
Because we are dependent on our management, the loss of key executive
officers could harm our business. 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. Although we have employment agreements with Messrs. Conway,
Grisanti, Phillips and Koop, these agreement do not guarantee that the officers
will continue with us. Our business may be adversely affected if any of our key
management personnel or other key employees left our employ.
Because we lack patent protection, we cannot assure you that others will
not be able to use our proprietary information in competition with us. We have
no patent or copyright protection for our proprietary software, and we rely on
non-disclosure agreements with our employees. Since our business is dependent
upon our proprietary products, the unauthorized use or disclosure of this
information could harm our business.
Our growth may be limited if we cannot make acquisitions. An important
part of our growth strategy is to acquire 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. As of the date of this prospectus, we do not have any agreement or
understanding, either formal or informal, as to any acquisition.
If we make any acquisitions, they 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
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 which may affect the market
price of our common stock. We may issue stock upon the exercise of options to
purchase up to an aggregate 799,192 shares of common stock pursuant to our
long-term incentive plans.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares. If any
selling stockholders exercise their options, we will receive the exercise price
of such options. We will use any such proceeds for working capital and general
corporate purposes.
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<PAGE>
<TABLE>
SELLING STOCKHOLDERS
The following table and discussion sets forth:
* the name of each selling stockholder,
* the nature of any position, office or other material relationship,
if any, which the selling stockholder has had with us or any of our
affiliates within the last three years,
* the number of shares of common stock owned by each selling
stockholder as of December 31, 1999, * the number of shares of
common stock offered for each selling stockholder's account,
and
* the percentage owned by each selling stockholder after completion
of the offering.
<S> <C> <C> <C> <C>
Shares of Shares of
Common Stock Common Stock Shares of Percentage
Owned Prior Offered For Account Common Stock Owned
Selling Stockholder to Offering of Selling Stockholder Owned After Offering After Offering
------------------- ----------- ---------------------- -------------------- --------------
James L. Conway 201,582 90,000 111,582 3.6%
John F. Phillips 198,922 101,922 97,000 3.2%
Edward D. Bright 191,422 106,922 84,500 2.8%
Gerald O. Koop 152,823 108,223 44,600 1.5%
Anthony F. Grisanti 123,061 95,821 27,240 *
Joseph G. Sicinski 32,000 20,000 12,000 *
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* Less than 1%.
The number of shares of common stock owned by each person includes
shares of common stock issuable upon the exercise of options and warrants that
are currently exercisable or will become exercisable within 60 days of January
20, 1999, except as otherwise noted below.
The number of shares of common stock owned by each person after the
offering assumes that such person exercises all of his options and sells all of
his shares.
Mr. James L. Conway has been our president and a director since January
1996 and our chief executive officer since April 1998. Shares owned by Mr.
Conway 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. Conway
disclaims beneficial interest in the securities owned by his wife.
Mr. Bright has been chairman of the board and a director of the Company
since April 1998. He is also a member of the audit and compensation committees
of the board of directors. From January 1996 until April 1998, Mr. Bright was an
executive officer of or advisor to our subsidiary, Creative Socio-Medics Corp.
Shares owned by Mr. Bright include 67,500 shares of common stock issuable upon
the exercise of options.
Mr. Phillips has been one of our directors and vice president of
Creative Socio-Medics since June 1994 and our vice president-marketing since
1996. Shares owned by Mr. Phillips include 89,000 shares of common stock
issuable upon the exercise of options.
Mr. Koop has been a director of the Company since June 1998. He has held
management positions with CSM for more than the past five years, most recently
as its chief executive officer, a position he has held since 1996. Shares owned
by Mr. Koop include 87,984 shares of common stock issuable upon the exercise of
options.
Mr. Grisanti has been treasurer of the Company since June 1994,
secretary since February 1995 and chief financial officer since January 1996.
Shares owned by Mr. Grisanti include 85,000 shares of common stock issuable upon
the exercise of options.
Mr. Sicinski has been a director of the Company since June 1998. Mr.
Sicinski is a member of the Company's audit and compensation committees of the
board of directors. Shares owned by Mr. Sicinski include 10,000 shares of common
stock issuable upon exercise of options.
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<PAGE>
PLAN OF DISTRIBUTION
The selling stockholders named under the caption "Selling Stockholders"
may sell up to 522,888 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 ledge their shares from time to time,
and the lender may sell the shares upon foreclosure.
The shares of common stock offered by the selling stockholders have been
issued upon exercise of options or are issuable upon exercise of options.
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.
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.
AVAILABLE INFORMATION
We file annual, quarter and periodic reports, proxy statements and other
information with the Securities and Exchange Commission using the Commission's
EDGAR system. You may inspect these documents and copy information from them at
the Commission's public reference facilities at 450 Fifth Street, N.W.,
Washington, D.C. 20549 or at the regional offices of the Commission at Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven
World Trade Center, Suite 1300, New York, New York 10048. Copies of such
material can be obtained at prescribed rates from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission maintains a Web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission. The address of such site is http//www.sec.gov.
We have filed a registration statement with the Commission 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 Commission's public reference facilities or its
website.
We furnish our stockholders with annual reports containing audited
financial statements and with such other periodic reports as we from time to
time deems appropriate or as may be required by law. We use the calendar year as
its 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 Commission. 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;
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<PAGE>
(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 Commission.
If we file any document with the Commission 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
Commission.
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.
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.
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.
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<PAGE>
PART II
INFORMATION REQUESTED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Relevance.
---------------------------------------
The following documents have been filed by Netsmart Technologies, Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission")
(File No. 0-21177) and are incorporated herein by reference:
(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.
All documents subsequently filed pursuant to Sections 13(a), 13(c), 14
and 15 of the Exchange Act prior to the filing of a post-effective amendment
which indicates that all securities hereby have been sold or which deregisters
securities then remaining unsold shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the date of filing
of such documents.
The exhibit index appears on page II-2 of this Registration Statement.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable
Item 6. Indemnification of Officers and Directors.
-----------------------------------------
Under the Delaware General Corporation Law ("DGCL"), 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 DGCL.
The Company also maintains directors and officers liability insurance
("D&O Insurance"). The D&O Insurance covers any person who has been or is an
officer or director of the Company or of any of its 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, offices 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.
II-1
<PAGE>
Item 7. Exemption from Registration Claimed.
-----------------------------------
The Registrant issued 10,000 shares of common stock to Joseph Sicinski
in January 2000 upon exercise of an option. Mr. Sicinski is a director of the
Registrant. The issuance of such shares was exempt from registration pursuant to
Section 4(2) of the Securities Act of 1933, as amended.
Item 8. Exhibits
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4.1(1) 1993 Long-Term Incentive Plan.
4.2(2) 1998 Long-Term Incentive Plan (as amended through
November 3, 1998)
5.1(3) Opinion of Esanu Katsky Korins & Siger, LLP.
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 hereto).
24.1 Power of Attorney (included on the signature page).
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1 Filed as an exhibit to the Registrant's registration statement on Form
S-1, File No. 333-2550, which was declared effective by the Commission
on August 13, 1996.
2 Included as Exhibit A to the Registrant's proxy statement dated
September 30, 1999, relating to its 1999 Annual Meeting of Stockholders.
3 Filed herewith
Item 9. 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 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.
II-2
<PAGE>
(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-3
<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-8 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 1st day of
February, 2000.
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 February 1, 2000
James L. Conway and Director
(Principal Executive Officer)
/s/ Anthony F. Grisanti Chief Financial Officer February 1, 2000
- -----------------------
Anthony F. Grisanti
(Principal Financial
and Accounting Officer)
/s/ Edward D. Bright Director February 1, 2000
- -----------------------
Edward D. Bright
/s/ John F. Phillips Director February 1, 2000
- -----------------------
John F. Philips
Director February 1, 2000
- -----------------------
Gerald O. Koop
Director February 1, 2000
- -----------------------
Joseph G. Sicinski
II-4
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 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
January 26, 2000
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 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, 1997 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.
Certified Public Accountants.
Cranford, New Jersey
February 1, 2000
Exhibit 5.1
Esanu Katsky Korins & Siger, LLP
605 Third Avenue
New York, New York 10158
Telephone: (212) 953-6000
Fax: (212) 953-6899
February 1, 2000
Securities and Exchange Commission 13146-02
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Netsmart Technologies, Inc.
--------------------------
Ladies and Gentlemen:
We refer to the registration statement on Form S-8 (the "Registration
Statement"), filed under the Securities Act of 1933, as amended (the "Act"), by
Netsmart Technologies, Inc., a Delaware corporation (the "Company"), with the
Securities and Exchange Commission covering the 500,000 shares of the Company's
common stock, par value $.01 per share ("Common Stock"), issuable pursuant to
the amendment to the Company's 1998 Long-Term Incentive Plan (the "Plan").
We have examined the originals or photocopies or certified copies of
such records of the Company, certificates of officers of the Company 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 described above, we are of the opinion that the
shares of Common Stock registered pursuant to the Registration Statement are
duly authorized and, when issued upon receipt of the exercise price of the
options granted pursuant to the Plan, will be validly issued, fully paid and
non- assessable.
Please note that Asher S. Levitsky, who is of counsel to this firm, and
the Asher S. Levitsky P.C. Defined Benefit Plan, of which Mr. Levitsky is the
trustee and beneficiary, are stockholders of the Company.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to our firm under "Legal Matters" in
the related Prospectus. In giving the foregoing consent, we do not hereby 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 Securities and Exchange
Commission.
Very truly yours,
ESANU KATSKY KORINS & SIGER, LLP
