As filed with the Securities and Exchange Registration Nos. 333-00080
Commission on April 17, 1998 333-37655
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
DATASTREAM SYSTEMS, INC.
(Exact name of issuer as specified in its charter)
Delaware 57-0813674
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
50 Datastream Plaza
Greenville, South
Carolina 29605
(Address of principal
executive offices)
___________________
DATASTREAM SYSTEMS, INC.
1995 STOCK OPTION PLAN
(Full title of the plan)
___________________
Larry G. Blackwell
Chairman of the Board, President and Chief Executive Officer
Datastream Systems, Inc.
50 Datastream Plaza
Greenville, South Carolina 29605
864/422-5001
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
J. Stephen Hufford, Esq.
Hunton & Williams
NationsBank Plaza - Suite 4100
600 Peachtree Street, N. E.
Atlanta, Georgia 30308-2216
404/888-4000
___________________
CALCULATION OF REGISTRATION FEE
===============================================================================
Proposed Proposed
Title of securities Amount to be maximum maximum Amount of
to be registered registered(1) offering price aggregate registration
per share offering price fee(2)
===============================================================================
Common Stock, $.01 1,500,000 N/A N/A N/A
par value........... shares
===============================================================================
(1) Pursuant to Rule 416(b), the number of shares of Common Stock
registered under the Registration Statements Nos. 333-00080 and 333-37655 has
been increased pursuant to adjustments under the Datastream Systems, Inc.
1995 Stock Option Plan to prevent dilution resulting from the 2-for-1 stock
split in the form of a stock dividend paid on January 30, 1998. Pursuant to
Rule 416(a) the number of shares of Common Stock registered hereunder
includes such indeterminate number of additional shares of Common Stock as
may be offered or issued in the future to prevent dilution resulting from
stock splits, stock dividends or similar transactions.
(2) The Registrant previously paid registration fees in the amounts of
$6,207 and $ 5,625 with the original filing on January 2, 1996 to register an
initial 1,000,000 shares and the filing on October 10, 1997 to register an
additional 500,000 shares of Common Stock, respectively. No additional fee
is required to register the additional 1,500,000 shares of Common Stock
resulting from the 2-for-1 stock split in the form of a stock dividend paid
on January 30, 1998.
<PAGE>
EXPLANATORY NOTE
Pursuant to Rule 429 of the Securities Act of 1933, as amended (the
"Securities Act"), the registrant, Datastream Systems, Inc. (the "Company"),
intends for this Post-Effective Amendment No. 1 to Registration Statement on
Form S-8 to constitute compliance with its undertakings to amend both its
Registration Statements on Form S-8, Nos. 333-00080 and 333-37655, both of
which relate to the Company's 1995 Stock Option Plan, in lieu of filing
separate post-effective amendments thereto.
This Post-Effective Amendment No. 1 amends the Company's Registration
Statement on Form S-8, Nos. 333-00080 and 333-37655 (the "Registration
Statements"), in accordance with rule 416 promulgated under the Securities
Act, to reflect an increase in the number of shares of common stock, $.01 par
value per share of the Company (the "Common Stock"), covered by such
Registration Statements as a result of a 2-for-1 stock split of the Common
Stock effected in the form of a stock dividend paid on January 30, 1998. The
Company previously paid registration fees in the amounts of $6,207.00 and
$5,625.00 with the original filings on January 2, 1996 and October 10, 1997,
respectively, to register an initial 1,000,000 and an additional 500,000
shares of Common Stock. Accordingly, there is no registration fee associated
with this Post-Effective Amendment No. 1.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Commission are
incorporated herein by reference and made a part hereof:
(i) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997 (File No. 000-25590); and
(ii) The description of the Common Stock contained in the
Company's Registration Statement on Form 8-A (Registration
No. 000-25590), including any amendments or reports filed
for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in the Registration Statement and to be part hereof from the date
of filing of such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document that is
incorporated by reference herein modifies or supersedes such earlier
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part 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 Directors and Officers.
Section 145 of the General Corporation Law of Delaware provides that a
corporation may indemnify its directors and officers against civil and
criminal liabilities. Directors and officers may be indemnified against
expenses if they acted in good faith and in a manner reasonably believed to
be in or not opposed to the best interests of the corporation and, with
respect to any criminal action, if they had no reasonable cause to believe
their conduct was unlawful. A director or officer may be indemnified against
expenses incurred in connection with a derivative suit if he acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification may be made
without court approval if such person was adjudged liable for negligence or
misconduct in the performance of his or her duty to the corporation. The
statutory indemnification is not exclusive of any rights provided by any
by-law, agreement, vote of shareholders or disinterested directors or
otherwise.
Article VII of the Company's Amended and Restated Certificate of
Incorporation sets forth the extent to which the Company's directors and
officers may be indemnified against liabilities and other monetary expenses
which they may incur while serving in such capacities. Such indemnification
will be provided to the full extent permitted and in the manner required by
the General Corporation Law of Delaware. Article XII of the Company's
By-laws also provides that the directors and officers of the Company will be
indemnified against any losses incurred in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director or officer of the Company or served with another corporation,
partnership, joint venture, trust or other enterprise at the request of the
Company and will provide advances, for expenses incurred in defending any
such action, suit or proceeding, upon receipt of an undertaking by or on
behalf of such officer or director to repay such advances, if it is
ultimately determined that he is not entitled to indemnification by the
Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
4.1* Amended and Restated Certificate of Incorporation of
Datastream Systems, Inc.
4.2** Amendment to Amended and Restated Certificate of
Incorporation of Datastream Systems, Inc., dated January
12, 1997.
4.3*** By-Laws of Datastream Systems, Inc.
4.4+ Specimen Stock Certificate.
5 Opinion of Hunton & Williams.
23.1 Consent of KPMG Peat Marwick LLP, independent certified
public accountants.
23.2 Consent of Hunton & Williams (included as part of Exhibit
5).
24.1 Power of Attorney, dated December 29, 1995, filed as part
of the signature page to the Company's Registration
Statement on Form S-8 (Registration No. 333-00080), filed
on January 2, 1996, is expressly incorporated herein by
reference.
24.2 Power of Attorney dated September 30, 1997, filed as part
of the signature page to the Company s Registration
Statement on Form S-8 (Registration No. 333-37655) filed
on October 10, 1997, is expressly incorporated herein by
reference.
99.1++ 1995 Stock Option Plan (as amended and restated through
May 7, 1997).
99.2+++ Amendment to 1995 Stock Option Plan (as amended and
restated through May 7, 1997), dated March 13, 1998.
______________________________
* Incorporated herein by reference to Exhibit 3.1 in the Company's
Registration Statement on Form S-1 (Registration No. 33-89498).
** Incorporated herein by reference to Exhibit 3.1(a) in the Company's
Annual Report on Form 10-K filed March 31, 1998 (File No. 000-25590).
*** Incorporated herein by reference to Exhibit 3.2 in the Company's
Registration Statement on Form S-1 (Registration No. 33-89498).
+ Incorporated herein by reference to Exhibit 4.2 in the Company's
Registration Statement on Form S-1 (Registration No. 33-89498).
++ Incorporated herein by reference to Appendix A to the Company's
definitive Proxy Statement for the 1997 Annual Meeting of Stockholders,
filed May 12, 1997 (File No. 000-25590).
+++ Incorporated herein by reference to Exhibit 10.1(a) in the Company's
Annual Report on Form 10-K filed March 31, 1998 (File No. 000-25590).
Item 9. Undertakings.
(a) The Company 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;
(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; and
(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.
2. That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions or otherwise, the
Company 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
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Greenville, South Carolina on this 16'th day of April, 1998.
DATASTREAM SYSTEMS, INC.
By: /s/ Larry G. Blackwell
Larry G. Blackwell
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities
indicated on the 16'th day of April, 1998.
Signature Title
--------- -----
/s/ Larry G. Blackwell Chairman of the Board, President
- - ------------------------ and Chief Executive Officer
Larry G. Blackwell (principal executive officer)
/s/ Daniel H. Christie Chief Financial Officer
- - ------------------------ (principal financial and
Daniel H. Christie accounting officer)
*
- - ------------------------ Director
Kenneth D. Tracy
*
- - ------------------------ Director
Richard T. Brock
*
- - ------------------------ Director
John M. Sterling, Jr.
*
- - ------------------------ Director
Ira D. Cohen
*By: /s/ Larry G. Blackwell
-------------------------
Larry G. Blackwell
Attorney-in-Fact
<PAGE>
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EXHIBIT INDEX
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Exhibit No. Description
4.1* Amended and Restated Certificate of Incorporation of
Datastream Systems, Inc.
4.2** Amendment to Amended and Restated Certificate of
Incorporation of Datastream Systems, Inc., dated January
12, 1997.
4.3*** By-Laws of Datastream Systems, Inc.
4.4+ Specimen Stock Certificate.
5 Opinion of Hunton & Williams.
23.1 Consent of KPMG Peat Marwick LLP, independent certified
public accountants.
23.2 Consent of Hunton & Williams (included as part of Exhibit
5).
24.1 Power of Attorney, dated December 29, 1995, filed as part
of the signature page to the Company's Registration
Statement on Form S-8 (Registration No. 333-00080), filed
on January 2, 1996, is expressly incorporated herein by
reference.
24.2 Power of Attorney dated September 30, 1997 filed as part
of the signature page to the Company's Registration
Statement on Form S-8 (Registration No. 333-37655) filed
on October 10, 1997, is expressly incorporated herein by
reference.
99.1++ 1995 Stock Option Plan (as amended and restated through
May 7, 1997).
99.2+++ Amendment to 1995 Stock Option Plan (as amended and
restated through May 7, 1997), dated March 13, 1998.
______________________________
* Incorporated herein by reference to Exhibit 3.1 in the Company's
Registration Statement on Form S-1 (Registration No. 33-89498).
** Incorporated herein by reference to Exhibit 3.1(a) in the Company's
Annual Report on Form 10-K filed March 31, 1998 (File No. 000-25590).
*** Incorporated herein by reference to Exhibit 3.2 in the Company's
Registration Statement on Form S-1 (Registration No. 33-89498).
+ Incorporated herein by reference to Exhibit 4.2 in the Company's
Registration Statement on Form S-1 (Registration No. 33-89498).
++ Incorporated herein by reference to Appendix A to the Company's
definitive Proxy Statement for the 1997 Annual Meeting of Stockholders,
filed May 12, 1997 (File No. 000-25590).
+++ Incorporated herein by reference to Exhibit 10.1(a) in the Company's
Annual Report on Form 10-K filed March 31, 1998 (File No. 000-25590).
<PAGE>
EXHIBIT 5
[LETTERHEAD OF HUNTON & WILLIAMS APPEARS HERE]
File No.: 50024.1
April 16, 1998
Datastream Systems, Inc.
50 Datastream Plaza
Greenville, South Carolina 29605
Re: Datastream Systems, Inc. Post-Effective Amendment
No. 1 to Registration Statements on Form S-8 Nos. 333-00080
and 333-37655
Ladies and Gentlemen:
We have served as counsel for Datastream Systems, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, pursuant to the Company's Post-Effective
Amendment No. 1 to Registration Statements on Form S-8, Nos. 333-00080 and
333-37655 (the "Post-Effective Amendment"), of 1,500,000 shares (the
"Shares") of the Company's authorized common stock, $.01 par value per share,
under the Company's 1995 Stock Option Plan (the "Plan").
We have examined and are familiar with originals or copies (certified
or otherwise identified to our satisfaction) of such documents, corporate
records and other instruments relating to the organization of the Company and
to the authorization and issuance of the Shares subject to the Plan, as
appropriate, as we have deemed necessary and advisable.
Based upon the foregoing and having regard for such legal consideration
as we deem relevant, it is our opinion that the Shares will be, when issued
in accordance with the terms of the Plan, legally issued, fully paid and
non-assessable.
We do hereby consent to the filing of this Opinion as Exhibit 5 to the
Post-Effective Amendment .
Very truly yours.
/s/ Hunton & Williams
---------------------------
Hunton & Williams
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Datastream Systems, Inc.:
We consent to incorporation by reference in the Registration Statement on
Forms S-8 (333-00080, 333-37655) of Datastream Systems, Inc. of our report
dated January 23, 1998, relating to the consolidated balance sheets of
Datastream Systems, Inc. and Subsidiaries as of December 31, 1997 and 1996,
and the related consolidated statements of operations, stockholders' equity,
and cash flows for each of the years in the three-year period ended December
31, 1997, and related schedule, which reports appear in the December 31, 1997
annual report on Form 10-K of Datastream Systems, Inc.
Greenville, South Carolina /s/ KPMG Peat Marwick LLP
April 16, 1998
