STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made and entered into
as of the 25th day of March, 1999 by and among Consolidated Technology Group
Ltd., a New York corporation ("COTG"), SIS Capital Corp., a New York corporation
("SIS"), Netsmart Technologies, Inc., a Delaware corporation ("Netsmart"), those
investors who are signatories to this Agreement (the "Signature Investors") and
Anthony Grisanti on behalf of each of the investors whose typed names appear
below his name on the signature page hereof (the "Grisanti Management Investors"
which, together with the Signature Investors, are referred to herein as the
"Management Investors").
Recitals
A. Seller owns a total of 992,624 shares of the Common Stock, par value
$.01 per share (the "Common Shares") of Netsmart, 1,210 shares of the Series D
Preferred Stock, par value $.01 per share (the "Preferred Shares") of Netsmart,
and a Series B common stock purchase warrant to purchase a total of 188,333
shares of the Common Stock of Netsmart (the "Warrants").
B. Seller, Netsmart and the Management Investors entered into a Letter
of Agreement, dated February 26, 1999, providing for the purchase by the
Management Investors from Seller of the Common Shares and the contribution to
Netsmart of the Preferred Shares and the Warrants upon the terms and conditions
set forth in this Agreement.
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the foregoing Recitals and the
mutual promises and covenants hereafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties hereby mutually
agree as follows:
1. Sale of Common Shares. On and subject to the terms and conditions of
this Agreement,
(a) At the First Closing (hereinafter defined), Seller agrees to sell,
transfer and assign to the Management Investors, and the Management Investors
agree to purchase from Seller, all of the Seller's right, title and interest in
and to 248,156 of the Common Shares for a purchase price of $500,000.
(b) At the Second Closing (hereinafter defined), Seller agrees to sell,
transfer and assign to the Management Investors, and the Management Investors
agree to purchase from Seller, all of the Seller's right, title and interest in
and to 248,156 of the Common Shares for a purchase price of Five Hundred
Thousand Dollars ($500,000).
(c) At the Third Closing (hereinafter defined), Seller agrees to sell,
transfer and assign to the Management Investors, if and only if the Management
Investors elect to purchase, all of the Seller's right, title and interest in
and to as many of the 496,312 of the Common Shares then owned by Seller as the
Management Investors elect to purchase at such Closing for a purchase price of
$2.0149 per share; provided, however, Seller may, at its option which must be
exercised by giving written notice to Netsmart at least fifteen (15) days before
the Third Closing, reduce the number of Common Shares it is obligated to sell
pursuant to this Section 1(c) by up to 200,000 shares. If and to the extent that
the Management Investors (or any Substitute Purchaser, hereinafter defined) do
not
elect to purchase from Seller the Common Shares referred to above in this
Section 1(c) on, but not later than, the date of the Third Closing, neither the
Management Investors nor any Substitute Purchaser shall have any further rights
or obligations with respect thereto subsequent to the date of the Third Closing.
(d) For purposes of subparagraphs (a), (b) and (c) above, the Management
Investors shall have the right, upon notice to Seller prior to the applicable
Closing, to assign to Netsmart and/or any other third party designated by the
Management Investors, including Netsmart (each a "Substitute Purchaser" and
collectively, the "Substitute Purchasers"), the right to purchase any or all of
the Common Shares that Seller is obligated to sell thereunder, provided that, as
a condition thereof, any such Substitute Purchaser executes and delivers to
Seller at the applicable Closing, an instrument in form and substance reasonably
satisfactory to Seller's counsel (the "Substitute Purchaser Assignment"), (i)
containing the name and address of such Substitute Purchaser and the number of
Common Shares being purchased by such purchaser, (ii) agreeing to be bound by
all of the applicable terms and provisions of this Agreement, and (iii)
containing the representations and warranties set forth in Section 5 of this
Agreement and any other provisions that may otherwise be required to comply with
the applicable provisions of the Securities Act of 1933, as amended (the
"Securities Act").
(e) On or before the First Closing, Netsmart will issue and deliver to
COTG 100,000 shares of its Common Stock (the "Additional Shares") in payment of
all accrued dividends on the Preferred Shares and in consideration of Seller's
assignment to Netsmart of the Preferred Shares and the Warrants.
2. Closings. All closings hereunder (individually, a "Closing", and
collectively, the "Closings") shall take place at the offices of Berlack,
Israels & Liberman LLP, 29th floor, 120 West 45th Street, New York, New York
10036 at 10:00 A.M., New York City time, on the days specified below, unless
otherwise agreed to in writing by all the parties hereto:
(a) The first closing shall take place on April 6, 1999 (the "First
Closing");
(b) The second Closing shall take place on April 13, 1999 (the "Second
Closing");
(c) The third closing shall take place on May 24, 1999 (the "Third
Closing"), subject to the right of the Management Investors or Netsmart to
adjourn the Third Closing by up to thirty (30) days with the written consent of
Seller, which shall not be unreasonably withheld, delayed or conditioned, it
being understood and agreed that Seller shall not withhold its consent if it is
furnished with a reasonable written assurance from a reputable third party prior
to the Third Closing that the financing needed to complete the purchase to take
place at the Third Closing will be provided by such third party within such
thirty (30) day period; and
(d) Notwithstanding the foregoing, or any other provisions of this
Agreement to the contrary, the Management Investors shall have the right, upon
prior notice to Seller and subject to Seller's right under Section 1(c) hereof
to elect not to sell up to 200,000 of the Common Shares, to purchase at any of
the Closings, any greater number of Common Shares which the Management Investors
are entitled to purchase under this Agreement.
3. Representations and Warranties of Seller and COTG. Seller and COTG hereby
jointly and severally make the following representations and warranties to the
Management Investors and Netsmart:
(a) SIC is the record and beneficial owner of the Common Shares, the
Preferred Shares, and the Warrants, in each case free and clear of all liens,
pledges, claims and security interests (collectively, "Liens"). The Common
Shares and the Preferred Shares constitute all of the capital stock of Netsmart
owned by Seller, COTG or any of their subsidiaries, and the Warrants constitute
all of the warrants, options and other derivative securities of Netsmart owned
by Seller, COTG or any of their subsidiaries.
(b) Seller and COTG are duly organized, validly existing and in good
standing under the laws of their states of organization. Seller and COTG have
all requisite corporate power and authority to execute and deliver this
Agreement and to perform their obligations hereunder, and Seller, and COTG have
taken all actions necessary to authorize the execution, delivery and performance
of this Agreement, and all other agreements and documents to be executed or
delivered herewith. No action is required to be taken by Seller's or COTG's
shareholders or any of them to authorize or consummate the transactions
contemplated by this Agreement.
(c) Seller has complete and unrestricted power and right to sell,
assign, convey and deliver the Common Shares as contemplated hereby. Upon
payment of the purchase price for the Common Shares as described in Section 1,
the Management Investors (or the Substitute Purchasers, as the case may be),
will receive good and valid title to the Common Shares free and clear of all
Liens. Upon the delivery of the Preferred Shares and the Warrants to Netsmart as
described in Section 8, Netsmart will receive good and valid title to the
Preferred Shares and the Warrants free and clear of all Liens.
(d) This Agreement is a valid and legally binding obligation of Seller
and COTG and is enforceable against Seller and COTG in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and other laws affecting creditors rights and general principles of equity.
(e) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby do not conflict with, or result in a breach
of, or constitute a default under, any agreement or instrument to which Seller
or COTG is a party or by which Seller or COTG may be bound, nor does such
action, to the best of Seller's and COTG's knowledge, violate any statute, law,
rule or regulation applicable to Seller or COTG or any order, writ, injunction
or decree of any court or governmental authority binding on Seller, or COTG.
(f) No action, suit or proceeding to which Seller or COTG is a party is
pending against Seller or COTG and, to Seller's and COTG's knowledge, neither
Seller nor COTG has received written notice of any threatened action, suit or
proceeding against Seller or COTG which seeks to enjoin or otherwise impair the
ability of Seller or COTG to consummate the transactions contemplated hereby.
(g) Seller and COTG are each "solvent", that is, the financial condition
of each of them is such that its property, at a "fair valuation", is greater
than the sum of its debts, and the sale contemplated by this Agreement will not
render Seller or COTG "insolvent" or leave Seller or COTG with "unreasonably
small capital" or with debts that will "be beyond Seller's or COTG's
ability to pay as and when such debts mature", as such quoted terms are used or
defined in the Federal Bankruptcy Code (11 USC Section 101 et seq.)
(h) Neither Seller nor COTG is a party to any agreements or
understandings with any other party that will prevent Seller from selling,
transferring and assigning the Common Shares, the Preferred Shares or the
Warrants to the Management Investors pursuant to the terms of this Agreement.
4. Representations and Warranties of Netsmart. Netsmart hereby makes the
following representations and warranties to Seller and COTG:
(a) Netsmart is a duly organized and validly existing corporation in
good standing in the state of organization. It has all requisite corporate power
and authority to execute, deliver and perform this Agreement and all other
agreements requiring its execution and delivery hereunder. If and to the extent
it performs any of the obligations or exercises any of the rights that may be
assigned to it by the Management Investors in accordance with the terms of this
Agreement, it has the requisite corporate power and authority to do so.
(b) Netsmart has taken all corporate action necessary to authorize the
execution, delivery and performance of this Agreement, and all other agreements
requiring its execution and delivery hereunder. No action is required to be
taken by Netsmart's shareholders or any of them to authorize or consummate the
transactions contemplated by this Agreement
(c) This Agreement constitutes the valid and legally binding obligation
of Netsmart and is enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditors' rights and general principles of equity.
(d) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby do not conflict with, or result in a breach
of, or constitute a default under, any agreement or instrument to which Netsmart
is a party or by which it may be bound, nor does such action, to the best of
Netsmart's knowledge, violate any statute, law, rule or regulation applicable to
it or any order, writ, injunction or decree of any court or governmental
authority binding on Netsmart.
(e) No action, suit or proceeding to which Netsmart is a party is
pending against Netsmart and, to Netsmart's knowledge, Netsmart has not received
any written notice of any threatened action, suit or proceeding against Netsmart
which seeks to enjoin or otherwise impair the ability of Netsmart to consummate
the transactions contemplated hereby.
(f) All information concerning Netsmart that is required to be disclosed
pursuant to the applicable provisions of the Securities Exchange Act of 1934, as
amended, has been publicly disclosed, and Netsmart has filed all required
reports with the Securities and Exchange Commission (the "Commission") with
respect thereto.
(g) The Additional Shares will be, when issued, validly authorized, duly
issued, fully paid and non-assessable.
5. Representations and Warranties of the Management Investors. The Management
Investors, severally but not jointly, make the following representations and
warranties to Seller and COTG:
(a) Each of the Management Investors has all requisite power and
authority to execute, deliver and perform this Agreement and all other
agreements requiring their execution and delivery hereunder and each has taken
all action necessary to authorize the execution, delivery and performance of
this Agreement, and all other agreements requiring such investor's execution and
delivery hereunder. No action is required to be taken by any shareholder of any
corporate Management Investor to authorize or consummate the transactions
contemplated by this Agreement.
(b) This Agreement constitutes the valid and legally binding obligation
of each of the Management Investors and is enforceable against them severally in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors' rights and
general principles of equity.
(c) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby do not conflict with, or result in a breach
of, or constitute a default under, any agreement or instrument to which the
Management Investors are parties or by which they may be bound, nor does such
action, to the best of each of the Management Investor's knowledge, violate any
statute, law, rule or regulation applicable to them or any order, writ,
injunction or decree of any court or governmental authority binding on any of
them.
(d) The Management Investors acknowledge that they have had full access
to all properties, financial statements, financial and other information, books,
records, contracts, and documents of or pertaining to Netsmart and the Common
Shares. The Management Investors also acknowledge that the purchase of the
Common Shares involves a high degree of risk and each such investor may sustain,
and has the financial ability to sustain, the loss of his or her entire
investment. Each of the Management Investors has engaged his or her own counsel
and accountants to the extent that each such investor has deemed advice from
such professionals to be necessary to assist such investor in evaluating the
transactions contemplated hereby.
(e) The Management Investors have had an opportunity to ask questions of
and receive answers and supporting information from Seller and the
representatives of Netsmart and Seller, and such representatives have answered
to the complete satisfaction of the Management Investors all inquiries put to
them concerning Seller and Netsmart, Netsmart's assets or any other matters
relating to the operation of Netsmart, and the transactions contemplated herein.
The Management Investors acknowledge that Seller has not made and is not making
any representations concerning Netsmart's business, prospects, earnings or
assets.
(f) Each of the Management Investors is either an "Accredited Investor"
as that term is defined under Rule 501 of Regulation D of the Securities Act or
has such knowledge and experience in financial and business matters that he is
capable of evaluating the merits and risks involved in the transactions
contemplated herein.
(g) Each Management Investor will acquire the Common Shares pursuant to
this Agreement for investment and not with a view to the sale or distribution
thereof, for each investor's own account and not on behalf of others and no such
investor has granted any other person or entity any interest or participation in
or right or option to purchase any or all of the Common Shares to be acquired by
it. Furthermore, each Management Investor hereby acknowledges that the Common
Shares are restricted securities within the meaning of Rule 144 of the
Commission under the Securities Act and may not be sold or otherwise transferred
other than pursuant to an effective registration statement or an exemption from
registration.
(h) No action, suit or proceeding to which the Management Investors, or
any of them, is a party, is pending against any of the Management Investors and,
to the best knowledge of the Management Investors, none of the Management
Investors has received any notice of any threatened action, suit or proceeding
against any of the Management Investors which seeks to enjoin or otherwise
impair the ability of the Management Investors to consummate the transactions
contemplated hereby.
6. Conditions to Obligations of the Management Investors. The obligations of the
Management Investors to purchase the Common Shares or any of them hereunder are
subject to the satisfaction, on or prior to each Closing, of the following
conditions or the written waiver thereof by the Management Investors:
(a) The agreements and conditions to be performed or fulfilled by Seller
and COTG shall have been duly performed and fulfilled in all material respects,
and the representations and warranties of Seller and COTG contained in this
Agreement shall be true and correct as of each such Closing in all material
respects.
(b) All of the documents required to be delivered by Seller and COTG
hereunder with respect to each such Closing shall have been delivered by Seller
and COTG to the Management Investors.
(c) All third party consents and governmental approvals required to
consummate the purchase and sale of the Common Shares, if any, shall have been
obtained.
(d) There shall not be pending against Seller or COTG any action, suit
or proceeding which challenges the sale of the Common Shares or the delivery to
Netsmart of the Preferred Shares or the Warrants by Seller.
(e) The Management Investors and Netsmart shall have received copies of
the Fairness Opinion (hereinafter defined) from an investment banker chosen and
paid for by COTG.
7. Conditions to Obligations of Seller. The obligations of Seller to sell the
Common Shares and to assign and transfer the Preferred Shares and the Warrants
to Netsmart are subject to the satisfaction, on or prior to each Closing, of the
following conditions, or the written waiver thereof by Seller:
(a) Netsmart shall have delivered to Seller, on or before the First
Closing, the Additional Shares. Notwithstanding any provision of this Agreement
to the contrary, Netsmart's obligation to deliver the Additional Shares to
Seller is dependent only upon Seller's obligation to deliver the documents
required to be delivered by it at the First Closing in exchange for the delivery
by Netsmart, the Management Investors and the Grisanti Management Investors to
Seller of the payment and the documents required to be delivered by them at the
First Closing.
(b) The agreements and conditions to be performed or fulfilled by the
Management Investors or Netsmart, as the case may be, shall have been duly
performed and fulfilled in all material respects, and all of the representations
and warranties of the Management Investors and Netsmart contained in this
Agreement shall be true and correct as of each such Closing in all material
respects.
(c) All of the documents required to be delivered hereunder at each such
Closing by the Management Investors and Netsmart, as the case may be, shall have
been delivered to Seller.
(d) All third party consents and governmental approvals required to
consummate the purchase of the Common Shares, if any, shall have been obtained.
(e) There shall not be pending against Netsmart or any of the Management
Investors any action, suit or proceeding which challenges the purchase of the
Common Shares or the delivery to Netsmart of the Preferred Shares or the
Warrants.
(f) Seller shall have received the purchase price for the Common Shares
to be sold at such Closing.
(g) Seller shall have received an opinion from an investment banker
chosen and paid for by it or COTG to the effect that the terms and conditions
set forth in this Agreement for the sale of the Common Shares are fair from a
financial point of view to COTG and its stockholders (the "Fairness Opinion").
8. Documents to be Delivered at the Closings.
(a) At the First Closing:
(i) Seller shall deliver to Netsmart a stock certificate
registered in the name of Seller for 248,156 shares of Netsmart's common stock,
duly endorsed by Seller for transfer to Netsmart, the stock certificate
representing the Preferred Shares duly endorsed by Seller for transfer to
Netsmart, and the Warrants with an assignment signed for transfer to Netsmart,
in each case with Seller's endorsement or assignment guaranteed by a member of
the medallion program or if any of the foregoing is lost or missing, an
affidavit of loss and indemnity satisfactory in form and substance to Netsmart;
(ii) Seller shall deliver to Netsmart and the Management
Investors copies of the Fairness Opinion;
(iii) The Management Investors shall pay to Seller the sum of
Five Hundred Thousand Dollars ($500,000), by certified or bank check payable to
Seller, or by wire transfer of immediately available funds to a bank account
designated by Seller prior to such Closing.
(iv) Netsmart will deliver to Seller a stock certificate,
registered in the name of Seller, for 100,000 of the shares of Common Stock of
Netsmart.
(v) Seller will deliver to Netsmart and the Management Investors
an opinion of its counsel, in a form reasonably acceptable to Netsmart's
counsel, to the effect that this Agreement has been duly authorized by Seller
and COTG and is valid and binding on Seller and COTG. No opinion will be
required as to shareholder approval. Netsmart will deliver to COTG and Seller,
an
opinion of its counsel, in a form reasonably acceptable to Seller's counsel, to
the effect that this Agreement has been duly authorized by Netsmart and is valid
and binding on Netsmart. No opinion will be required as to the Management
Investors.
(vi) The Grisanti Management Investors will deliver to Seller
original counterpart signature pages to this Agreement signed by each of such
investors, and if applicable, the Management Investors will deliver to Seller
the Substitute Purchaser Assignment executed by each Substitute Purchaser in
accordance with the provisions of Section 1(d) hereof.
(b) At the Second Closing:
(i) Seller shall deliver to Netsmart a stock certificate of
Netsmart registered in the name of Seller for 248,156 shares of the Common Stock
of Netsmart, duly endorsed by Seller for transfer to Netsmart, with Seller's
endorsement guaranteed by a member of the medallion program.
(ii) The Management Investors shall pay to Seller the sum of Five
Hundred Thousand Dollars ($500,000), by certified or bank check payable to
Seller, or by wire transfer of immediately available funds to a bank account
designated by Seller prior to such Closing.
(iii) If applicable, the Management Investors will deliver to
Seller the Substitute Purchaser Assignment executed by each Substitute Purchaser
in accordance with the provisions of Section 1(d) hereof.
(c) At the Third Closing:
(i) Seller shall deliver to Netsmart a stock certificate of
Netsmart registered in the name of Seller for 496,312 shares of the Common Stock
of Netsmart (or such lesser number of shares in an amount equal to 496,312 less
such number of the Common Shares, if any, which either Seller may have elected
not to sell, or the Management Investors may have elected not to purchase,
pursuant to Section 1(c) hereof), duly endorsed by Seller for transfer to
Netsmart, with Seller's endorsement guaranteed by a member of the medallion
program.
(ii) The Management Investors shall pay to Seller the sum of
$1,000,000 (or an amount equal to $1,000,000 less $2.0149 for each Common Share,
if any, which either Seller may have elected not to sell, or the Management
Investors may have elected not to purchase, pursuant to Section 1(c) hereof), by
certified or bank check payable to Seller, or by wire transfer of immediately
available funds to a bank account designated by Seller prior to such Closing.
(iii) If applicable, Netsmart will deliver to Seller its stock
certificate for such number of the Common Shares, if any, as Seller may have
elected not to sell, or the Management Investors may have elected not to
purchase, pursuant to Section 1(c) hereof.
(iv) If applicable, the Management Investors will deliver to
Seller the Substitute Purchaser Assignment executed by each Substitute Purchaser
in accordance with the provisions of Section 1(d) hereof.
(d) At each of the Closings, the parties shall deliver to each other the
following which, unless otherwise indicated herein, shall be dated and effective
as of each such Closing:
(i) an officer's certificate of Seller confirming Seller's title
to the Common Shares being sold, subject to no Liens, and the truth of the
representations and warranties of Seller and COTG, and the fulfillment of the
conditions to be satisfied by Seller, as of the date of such Closing; and
(ii) an officer's Certificate of Netsmart and certificates of
each of the Management Investors confirming the truth of their respective
representations and warranties, and the fulfillment of the conditions to be
satisfied by Netsmart or the Management Investors, as the case may be, as of the
date of such Closing.
9. Conduct of Business Pending Closing.
(a) During the period commencing on the date hereof and continuing
through each of the Closings, Seller shall not cause Netsmart (except as
expressly contemplated by this Agreement) to materially and adversely change its
business, operations, financial condition or prospects or to conduct its
business other than in the ordinary course, it being understood that Seller
shall not be required to provide funding to Netsmart. For purposes hereof, any
actions of Edward Bright or Seymour Richter in their capacity as directors of
Netsmart shall not constitute Seller causing Netsmart to take any of the
foregoing actions. Notwithstanding any provision of this Agreement to the
contrary, the sole and exclusive remedy of the Management Investors or Netsmart
for any breach of this Section 9(a) shall be the termination of this Agreement
pursuant to Section 13 hereof.
(b) Subject to the terms and conditions of this Agreement, each of the
parties hereto agrees to use all reasonable efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all things necessary, proper
or advisable to consummate and make effective the transactions contemplated by
this Agreement, consistent with the provisions of this Agreement.
10. Registration of Common Stock of Seller.
(a) For purposes of this Section, the following terms shall have the
meanings set forth below:
(i) "Registration Termination Date" shall mean the date on which
Seller or its Permitted Transferee (hereinafter defined) shall be entitled to
sell all of the Seller's Shares pursuant to Rule 144(k) promulgated by the
Commission under the Securities Act.
(ii) "Seller's Shares" shall mean all of the shares of Common
Stock of Netsmart owned by Seller or its Permitted Transferee.
(iii) "Permitted Transferee" shall mean any one person or entity
who or which is an "accredited investor", as defined in the Commission's
Regulation D, to whom or to which Seller may transfer any or all of Seller's
Shares. For the purpose of this Section 10, all references to Seller shall
include, if applicable, the Permitted Transferee.
(b) Netsmart shall use its best efforts to register under the Securities
Act, all of Seller's Shares in order to enable Seller to publicly offer and sell
such shares, after they have been registered under the Securities Act. As
promptly as practical following the Second Closing or the earlier
termination of this Agreement, Netsmart will prepare and file with the
Commission the appropriate form of registration statement required to effect
such registration of Seller's Shares. Netsmart will provide Seller with copies
of such registration statement and any amendments thereto and all correspondence
received by it from the Commission with respect thereto, promptly after the
filing or receipt thereof. Netsmart will use its best efforts to keep any such
registration statement current and effective until the Registration Termination
Date. Netsmart shall bear all of the costs and expenses in connection with any
such registration of securities pursuant to this Section, except that Seller
will bear all of the fees and expenses of its counsel and accountants and any
transfer taxes or underwriting discounts or commissions applicable to sales of
Seller's Shares pursuant thereto.
(c) Following the effective date of the registration statement referred
to in Section 10(b) above, Netsmart shall forthwith supply Seller with such
number of prospectuses meeting the requirements of the Securities Act as shall
be reasonably requested by Seller to permit Seller to make a public distribution
of the Seller's Shares from time to time, provided that Seller shall furnish
Netsmart, in writing, with all appropriate information reasonably requested by
Netsmart, in writing, concerning Seller, Seller's Shares, and the manner in
which Seller proposes to offer and sell such shares in connection with any such
registration statement. Netsmart will also use its best efforts to qualify
Seller's Shares for sale through securities broker-dealers, at its expense, in
five states (other than California, Florida and Texas) as Seller shall
reasonably request, in order to effect public sales of the Seller's Shares in
such states except that Netsmart shall not be required to qualify generally to
do business as a foreign corporation in any such jurisdiction where it would
not, but for the requirements of this Section 10(c), be obligated to be so
qualified, to subject itself to taxation in such jurisdiction or to consent to
general service of process in any such jurisdiction. Netsmart shall also prepare
and file with the Commission, at its expense, such amendments and supplements to
any such registration statement and prospectus that may be used pursuant to this
Section 10(b) as may be necessary to keep such registration statement current
and effective pursuant to the provisions of this Section until the Registration
Termination Date and will notify Seller at such time as, for any reason, the
prospectus relating to sales of Seller's Shares is no longer current and
effective, and the reason therefor.
(d) In addition, until the Registration Termination Date, Netsmart will
include Seller's Shares in any registration statement that it might file with
the Commission (other than a registration statement on Form S-4 or S-8 or any
subsequent form relating to employee benefit plans or mergers or acquisitions),
subject to customary underwriter exclusions and/or lock-ups with respect
thereto. Netsmart shall provide Seller with written notice at least two weeks
prior to the filing of any such registration statement and will include in any
such registration statement all such information as may be required to permit a
public sale by Seller of Seller's Shares. If the underwriter of any offering
which is the subject of any such registration statement shall permit the
inclusion in such registration statement of only a limited number of shares of
Netsmart's Common Stock by selling stockholders, to the extent that such
underwriter permits any such shares to be included in any such registration
statement, Netsmart shall include Seller's Shares and the shares to be sold by
all persons exercising "piggy-back" or similar registration rights, on a
proportional basis, based upon the number of shares of Netsmart's Common Stock
which each such person proposes to include in any such registration statement.
Netsmart shall keep any such registration statement current and effective for a
period of not less than one year from the effective date thereof (or any such
longer or shorter period as Netsmart may keep such registration statement
current and effective for other selling stockholders), or until the Seller's
Shares have been sold, whichever first occurs.
(e) Netsmart shall defend, indemnify and hold harmless Seller and each
affiliate, officer, director, employee and agent of the Seller, any underwriter
or broker-dealer (as defined in the Securities Act), who may purchase from or
sell any of Seller's Shares for the Seller, and each person, if any, who
controls such Seller or such underwriter or broker-dealer (within the meaning of
the Securities Act or the Securities Exchange Act of 1934, as amended), from and
against any and all losses, claims, damages, liabilities, costs and expenses
(including attorneys' fees) (the "Losses") caused by any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement filed by Netsmart with the Commission pursuant to this Section 10, or
any prospectus included therein or any related application or other filing under
any state securities law, or by any omission or alleged omission therein of a
material fact required to be stated therein or necessary to make the statements
therein not misleading to which Seller or any of such persons may become subject
under the Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any other Federal or state law, rule or regulation, at
common law or otherwise, except insofar as such Losses are caused by any such
untrue statement or alleged untrue statement or omission or alleged omission
which is based upon information furnished or required to be furnished to
Netsmart by Seller or any of such persons or entities expressly for use in any
such registration statement.
(f) Seller and COTG shall jointly and severally defend, indemnify and
hold harmless Netsmart, its directors, each officer signing any such
registration statement, each person, if any, who controls Netsmart within the
meaning of the Securities Act or the Exchange Act, any managing underwriter or
underwriter (and each person who controls the managing underwriter or the
underwriter within the meaning of the Securities Act or the Exchange Act), and
each other person whose securities are being offered or sold pursuant to such
registration statement, from and against any and all Losses caused by any untrue
statement or alleged untrue statement of a material fact contained in any such
registration statement or any prospectus required to be filed or furnished in
connection therewith, or any related application or other filing under any state
securities law, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading to which Netsmart, or any of such persons may become
subject under the Securities Act, the Securities Exchange Act, or any other
Federal or state law, rule or regulation, at common law or otherwise, insofar as
such Losses are caused by any such untrue statement or alleged untrue statement
or omission or alleged omission which is based upon information furnished to
Netsmart by Seller, in writing, expressly for use in any such registration
statement.
(g) If any action or claim shall be brought or asserted by a person or
entity entitled to indemnification pursuant to Sections 10(e) or 10(f) above (a
"Section 10 Indemnified Party") against any person or entity who or which is
responsible to provide indemnification thereunder (a "Section 10 Indemnifying
Party"), the provisions of Sections 15(d), 15(e) and 15(f) shall apply to any
such action or claim.
(h) If the indemnification provided for in this Section is held by a
court of competent jurisdiction to be unavailable to a Section 10 Indemnified
Party with respect to any Loss, then the Section 10 Indemnifying Party, in lieu
of indemnifying such Section 10 Indemnified Party thereunder, shall contribute
to the amount paid or payable by such Section 10 Indemnified Party as a result
of such Loss in such proportion as is appropriate to reflect the relative fault
of the Section 10 Indemnifying Party, on the one hand, and the Section 10
Indemnified Party, on the other hand, in connection with the matters which
resulted in such Loss, as well as any other relevant equitable considerations.
The relevant fault of the Section 10 Indemnifying Party and the Section 10
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or
alleged untrue statement of a material fact or the omission, or alleged omission
to state a material fact relates to information supplied by the Section 10
Indemnifying Party or by the Section 10 Indemnified Party and the party's
relative intent, knowledge, access to information and opportunity to correct or
prevent such statements or omissions.
(i) Netsmart's registration obligations under this Section 10 shall be
binding upon it with respect to Seller's Shares, whether or not the Management
Investors or Netsmart purchase any of the Common Shares or whether or not this
Agreement is terminated pursuant to Section 13 hereof, except for any
termination pursuant to Section 13(a)(i) or (iii) hereof. In addition, the
indemnification provided for by this Section shall be a continuing right and
obligation to indemnification and shall survive the registration and sale of any
of Seller's Shares by any person entitled to indemnification hereunder and the
termination of this Agreement.
(j) The foregoing obligations are contingent upon Seller (i) providing
Netsmart with such information as Netsmart reasonably requests, in writing,
concerning Seller, the shares it owns and the manner in which it proposes to
offer and sell such shares.
11. Negotiations or Sale Prohibited.
Neither COTG, Seller, their respective majority owned subsidiaries,
companies which are majority owned by such subsidiaries, nor the directors,
officers, agents or advisors of any of them (other than Netsmart) shall, without
the written consent of the Management Investors and Netsmart (a) negotiate, or
directly or indirectly solicit, entertain, propose to enter into, or continue
any negotiations, or enter into any agreement or understanding with any party
which provides for or relates to the sale, pledge or other disposition of any of
the Common Shares or the Preferred Shares or (b) sell, pledge or otherwise
dispose of any of the Common Shares or the Preferred Shares; provided, however,
(i) if the Management Investors and Netsmart terminate this Agreement for any
reason other than a breach by Seller or Seller's failure to fulfill a condition
for which it is responsible, or (ii) if Seller terminates this Agreement due to
a breach by the Management Investors or Netsmart or their failure to fulfill a
condition for which they are responsible, Seller will no longer be bound by the
foregoing restrictions. Notwithstanding the foregoing, if this Agreement is
terminated by the Management Investors and Netsmart pursuant to clause (i)
above, the above restrictions will be binding upon COTG and Seller only for
thirty (30) days thereafter.
12. Confidentiality.
(a) Each of the parties hereto shall hold in confidence, and shall not
disclose, any non-public information about the business of the other, learned or
discovered during the course of the negotiations of the transactions
contemplated hereby, except to the extent required by applicable law, rule or
regulation. The timing and contents of any announcements, press releases, or
other public statements concerning the proposed transactions and related matters
will occur upon, and be determined by, mutual agreement and consent of the
parties, whenever possible, which agreement and consent will not be unreasonably
withheld, conditioned or delayed. Each of the parties shall cooperate with the
other parties concerning any such announcement, press release or other public
statement, and with respect to any discussions with regulatory agencies
involving this Agreement or the transactions contemplated hereby. Neither COTG,
Seller nor Netsmart shall be required to obtain any consent from each other to
file any such reports or forms as are required to be filed under applicable law.
(b) Netsmart and the Management Investors agree to maintain the Fairness
Opinion in confidence and not to, directly or indirectly, disclose such opinion,
or the contents thereof, in any written or oral communication to any third
party, except to the extent it is required to be disclosed by applicable law.
13. Termination.
(a) This Agreement may be terminated at any time prior to any of the
Closings:
(i) by mutual written consent of the parties;
(ii) by any party hereto on written notice to the other parties,
if such Closing shall not have been consummated on the date specified for such
Closing in Section 2 hereof; provided, however, any such Closing may be
adjourned for good cause shown for up to five (5) business days at the option of
any party on written notice to the other parties specifying such causes, or, to
such later date as all parties may agree, in writing; provided, further, that in
the case of a termination under this clause (ii), the party terminating this
Agreement shall not then be in material default of this Agreement. For purposes
hereof, the failure or inability of the Management Investors to have the
necessary funds available to pay Seller the purchase price, when due, for the
Common Shares pursuant to Section 1 hereof, shall not constitute "good cause".
Furthermore, any termination of this Agreement pursuant to this clause (ii)
shall not constitute a waiver or release by the party terminating this Agreement
against the party who is then in breach or default of this Agreement.
(iii) by the Management Investors or Netsmart, if (A) there has
been a material misrepresentation, or a material default by Seller under this
Agreement, or (B) any of the conditions set forth in Section 6 has not been met
or waived on or before the applicable Closing, and, in such case, the
terminating party is not then in material default of its obligations hereunder;
or
(iv) by Seller, if (A) there has been a material
misrepresentation or material default by the Management Investors or Netsmart
under this Agreement, or (B) any of the conditions set forth in Section 7 has
not been met or waived on or before the applicable Closing, and, in such case,
Seller is not then in material default of its obligations hereunder.
(b) Upon the termination of this Agreement as provided in clause (i) of
subparagraph (a) hereof, this Agreement shall forthwith become void and there
shall be no liability or obligation on the part of any party hereto or their
respective directors, officers, employees, agents or other representatives.
(c) In the event of the termination of this Agreement as provided in
clauses (ii), (iii) or (iv) of subparagraph (a) hereof, such termination shall
be without prejudice to any rights that the terminating party or parties may
have against the breaching party or parties or any other person under the terms
of this Agreement or otherwise. Anything herein to the contrary notwithstanding,
if the Management Investors and Netsmart receive the documents specified in
Section 8 to be delivered by Seller at the First Closing or Second Closing, no
termination of this Agreement, including any termination by the Management
Investors or Netsmart, shall terminate the obligations of (i) the Management
Investors to complete the purchases of the Common Shares to be purchased by them
at the First and Second Closings, or (ii) Netsmart's registration obligations
pursuant to the provisions of Section 10 hereof.
14. Survival of Representation and Warranties. The representations and
warranties of the parties hereto contained in this Agreement shall survive the
Closings and the consummation of the transactions contemplated hereby (and any
examination or investigation of any party hereto by or on behalf of any other
party hereto) until the second anniversary of the Third Closing Date.
15. Indemnification.
(a) Seller and COTG shall, jointly and severally, defend, indemnify and
hold harmless Netsmart and the Management Investors and each person who controls
Netsmart within the meaning of the Securities Act from and against any losses,
claims, liabilities, costs and expenses (collectively, "Damages") arising out of
or resulting from: (i) any inaccuracy in or breach of any material
representation or warranty made by Seller or COTG in this Agreement; or (ii) the
failure of Seller or COTG to perform or observe any material covenant or
agreement to be performed or observed by Seller pursuant to this Agreement.
(b) Netsmart shall defend, indemnify and hold harmless Seller, COTG and
their respective officers, directors, employees and agents and each person who
controls Seller or COTG within the meaning of the Securities Act from and
against any Damages arising out of or resulting from: (i) any inaccuracy in or
breach of any material representation or warranty made by Netsmart in this
Agreement; or (ii) the failure by Netsmart to perform or observe any material
covenant or agreement to be performed by it pursuant to this Agreement.
(c) The Management Investors, severally and not jointly, shall defend,
indemnify and hold harmless Seller, COTG and their respective officers,
directors, employees and agents and each person who controls Seller or COTG
within the meaning of the Securities Act from and against any Damages arising
out of or resulting from: (i) any inaccuracy in or breach of any material
representation or warranty made by the Management Investors in this Agreement;
or (ii) the failure by the Management Investors to perform or observe any
material covenant or agreement to be performed by them pursuant to this
Agreement.
(d) If any party entitled to be indemnified pursuant to this Section 15
(an "Indemnified Party") receives notice of the assertion by any third party of
any claim or of the commencement by any such third party of any proceeding (any
such claim or proceeding being referred to herein as an ("Indemnifiable Claim")
with respect to which another party hereto (an "Indemnifying Party") is or may
be obligated to provide indemnification, the Indemnified Party shall promptly
notify the Indemnifying Party in writing (the "Claim Notice") of the
Indemnifiable Claim; provided, that the failure to provide such notice shall not
relieve or otherwise affect the obligation of the Indemnifying Party to provide
indemnification hereunder, except to the extent that any Damages directly
resulted from or were caused by such failure.
(e) The Indemnifying Party shall have ten (10) days after receipt of the
Claim Notice to undertake, conduct and control, through counsel of its own
choosing, and at its expense, the settlement or defense of the Indemnifiable
Claim described therein, and the Indemnified Party shall cooperate with the
Indemnifying party in connection therewith; provided, however, the Indemnifying
Party shall permit the Indemnified Party to participate in such settlement or
defense through counsel chosen by the Indemnified Party (subject to the consent
of the Indemnifying Party, which consent shall not be unreasonably withheld,
conditioned or delayed), provided that the fees and expenses of such counsel
shall be borne by the Indemnified Party, unless (i) the employment of such
counsel has
been specifically authorized by the Indemnifying Party, in writing, and the
Indemnifying Party shall have agreed in writing to pay such fees and expenses,
or (ii) the named parties to any such proceeding relating to an Indemnifiable
Claim include both the Indemnified Party and the Indemnifying Party and, in the
judgment of counsel for the Indemnifying Party, it is advisable for the
Indemnified Party to be represented by separate counsel (in which case, the
Indemnifying Party shall not have the right to assume the defense of such
proceeding on behalf of the Indemnified Party and, in such case, such legal fees
and expenses shall be borne by the Indemnifying Party), and (iii) the
Indemnifying Party shall not settle any Indemnifiable Claim without the
Indemnified Party's consent, which consent shall not be unreasonably withheld,
conditioned or delayed. So long as the Indemnifying Party is vigorously
contesting any such Indemnifiable Claim in good faith, the Indemnified Party
shall not pay or settle such claim without the Indemnifying Party's consent,
which consent shall not be unreasonably withheld, conditioned or delayed.
(f) If the Indemnifying Party does not notify the Indemnified Party
within ten (10) days after receipt of the Claim Notice that it elects to
undertake the defense of the Indemnifiable Claim described therein, the
Indemnified Party shall have the right to contest, settle or compromise the
Indemnifiable Claim in the exercise of its reasonable discretion; provided, that
the Indemnified Party shall notify the Indemnifying Party of any compromise or
settlement of any such Indemnifiable Claim.
16. Miscellaneous.
(a) Notices. All notices, requests, consents and other communications
required under this Agreement (the "Notices"), shall be given in writing and
shall be either delivered personally, receipt acknowledged, or mailed, certified
mail return receipt requested, or delivered by overnight courier service,
receipt acknowledged, to the parties hereto at the following addresses (or
facsimile number), or at such other address or facsimile number as any party
hereto designates by written notice to the other parties hereto which is given
in the manner prescribed in this Section 16(a), and shall be deemed to have been
given upon delivery, if delivered personally or by courier service or three (3)
days after mailing, if mailed, as aforesaid, or upon receipt if sent by
facsimile:
To COTG or
Seller: Consolidated Technology Group Ltd.
160 Broadway
New York, New York 10038
Attn: Seymour Richter, President
Fax No. 212-233-5023
-and-
Consolidated Technology Group Ltd.
2424 North Federal Highway, Suite 110
Boca Raton, FL 33431
Attn: George W. Mahoney, Chief Financial Officer
Fax No. 561-347-5352
With copies to: Robert Blessey, Esq.
51 Lyon Ridge Road
Katonah, New York, 10536
Fax No. 1-914-232-0647
To the Management Investors: Anthony Grisanti
146 Nassau Avenue
Islip, New York 11751
Fax No. 516-968-2123
With copies to: Berlack, Israels & Liberman LLP
120 West 45th Street
New York, New York 10036
Attention: Martin S. Siegel, Esq.
Fax No. 212-704-0196
To Netsmart: Netsmart Technologies, Inc.
146 Nassau Avenue
Islip, New York 11751
Attention: James L. Conway, President
Fax No. 516-968-2123
With copies to: Berlack, Israels & Liberman LLP
120 West 45th Street
New York, New York 10036
Attention: Martin S. Siegel, Esq.
Fax No. 212-704-0196
Any Notice to a Substitute Purchaser shall be provided to such
Substitute Purchaser at the address set forth in the Substitute Purchaser
Assignment of such purchaser.
(b) Interpretation. The parties have jointly participated in the
negotiation and drafting of this Agreement. In the event any ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumptions or burdens of proof
shall arise favoring any party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. Each
defined term used in this Agreement has a comparable meaning when used in its
plural or singular form. Each gender-specific term used herein has a comparable
meaning whether used in a masculine, feminine or gender-neutral form. The term
"include" and its derivatives shall have the same construction as the phrase
"include, without limitation," and its derivatives. The Section headings
contained in this Agreement are inserted for convenience of reference only and
shall not affect in any way the meaning or interpretation of this Agreement.
(c) Governing Law. This Agreement, having been signed and to be
performed in New York, shall be construed and enforced in accordance with and
shall be interpreted by the internal laws of the State of New York.
(d) Waiver. No restriction, condition, obligation or provision contained
in this Agreement shall be deemed to have been abrogated or waived by reason of
any failure to enforce the same, irrespective of the number of violations or
breaches thereof which may occur.
(e) Severability. The provisions hereof shall be deemed independent and
severable, and the invalidity or partial invalidity or enforceability of any one
provision shall not affect the validity or enforceability of any other provision
hereof.
(f) Non-assignability. None of the parties may assign this Agreement
without the consent of the other parties, except that (i) on prior written
notice to Seller, the Management Investors may assign to Netsmart or to one or
more Substitute Purchasers selected by the Management Investors their rights to
purchase the Common Shares to be purchased at the Second Closing and/or the
Third Closing hereunder, and (ii) on prior written notice to Netsmart, Seller
may sell or assign its right, title and ownership interest in and to any or all
of the shares of common stock of Netsmart owned by it (and the registration and
indemnification rights relating thereto) to a Permitted Transferee. This
Agreement shall be binding upon and shall inure to the benefit of the parties
and their respective successors and permitted assigns.
(g) Counterparts. This Agreement may be executed in counterparts, each
of which shall be considered an original, but all of which shall constitute a
single agreement.
(h) Fees and Expenses. Each of the parties shall pay its own fees, costs
and expenses incurred in connection with the transactions contemplated by this
Agreement, except as otherwise expressly provided for in this Agreement, or in
the event any action or proceeding to enforce this Agreement is brought by any
of the parties hereto, the party prevailing in such action or proceeding shall
be entitled to reimbursement of all of its costs in connection therewith,
including its counsel fees and disbursements.
(i) Brokers. Seller and COTG represent and warrant to Netsmart and the
Management Investors that no broker or finder is entitled to any brokerage or
finder's fee or other commission or fee based upon arrangements or agreements
made by or on behalf of Seller or COTG in connection with this Agreement or any
of the transactions contemplated hereby. Netsmart and the Management Investors
represent and warrant to Seller and COTG that no broker or finder is entitled to
any brokerage or finder's fee or other commission or fee based upon arrangements
or agreements made by or on behalf of Netsmart or the Management Investors in
connection with this Agreement or any of the transactions contemplated hereby.
(j) Entire Agreement; Amendment. This Agreement and the exhibits
attached hereto, and the documents required to be delivered at the several
Closings hereunder, all of which are made a part hereof, contain the entire
agreement between the parties with respect to the transactions contemplated
herein, and supersede the Letter of Agreement dated February 26, 1999 and all
prior agreements and understandings including any letters of intent or term
sheets between the parties relating to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
SIS CAPITAL CORP.
By: ______________________
Name: ______________________
Its: _____________________
CONSOLIDATED TECHNOLOGY GROUP LTD.
By: _____________________
Name: _____________________
Its: _____________________
NETSMART TECHNOLOGIES, INC.
By: _____________________
Name: _____________________
Its: _____________________
/S/Edward D. Bright
- -------------------------------------
Edward D. Bright, Management Investor
/S/ James L. Conway
- -------------------------------------
James L. Conway, Management Investor
/S/ Anthony Grisanti
- -------------------------------------
Anthony Grisanti, Management Investor
/S/ Anthony Grisanti
- ---------------------------
ANTHONY GRISANTI
ON BEHALF OF THE FOLLOWING MANAGEMENT
INVESTORS:
/S/ Edward Bright
- ---------------------------
EDWARD BRIGHT
/S/ John Phillips
- ---------------------------
JOHN PHILLIPS
/S/ Nancy Brill
- ---------------------------
NANCY BRILL
/S/ Gerald Koop
- ---------------------------
GERALD KOOP
/S/ James Conway
- ---------------------------
JAMES CONWAY
/S/ Anthony Grisanti
- --------------------------
ANTHONY GRISANTI
/S/ Jospeh McGovern
- --------------------------
JOSEPH McGOVERN
/S/ Alan Tillinghast
- ---------------------------
ALAN TILLINGHAST
/S/ Oscar Schachter
- ----------------------------
OSCAR SCHACHTER
/S/ Lew Cordina
- ----------------------------
LEW CORDINA
/S/ James Gargiulo
- ----------------------------
JAMES GARGIULO
/S/ Nick Burford
- ----------------------------
NICK BURFORD
/S/ Mary Morse
- ----------------------------
MARY MORSE
/S/ Joseph Sicinski
- ------------------------------
JOSEPH SICINSKI
/S/ Charles Gibson
- ------------------------------
CHARLES GIBSON
/S/ John Friel
- ------------------------------
JOHN FRIEL
/S/ John Hunter
- ------------------------------
JOHN HUNTER
/S/ Rich Labell
- ------------------------------
RICH LABELL
/S/ Fred Melton
- ------------------------------
FRED MELTON
/S/ Ron Marge
- ------------------------------
RON MARGE
/S/ Lorraine Semsky
- ------------------------------
LORRAINE SEMSKY
/S/ Dr. Bernard Greenblatt
- --------------------------------
DR. BERNARD GREENBLATT, TRUSTEE
BERNARD GREENBLATT LIVING TRUST
DATED 07/15/96
/S/ Gary Barber
- --------------------------------
GARY BARBER
/S/ John Langley
- --------------------------------
JOHN LANGLEY
LANGLEY PRODUCTIONS
/S/ Richard Knoll / Michele Knoll
- --------------------------------
RICHARD AND MICHELE KNOLL
/S/ Richard Knoll / Susan Smith
- --------------------------------
KNOLL-SMITH PARTNERSHIP
RICHARD KNOLL & SUSAN SMITH
/S/ Leonard Davidson
- --------------------------------
LEONARD DAVIDSON
LEONARD & BERNICE DAVIDSON FAMILY TRUST
/S/ Jeffrey Ames / Elizabeth Ames
- --------------------------------
JEFFREY & ELIZABETH AMES
/S/ Kenneth Sheiffer
- --------------------------------
KENNETH SHEIFFER