As filed with the Securities and Exchange
Commission on April 17, 1998 Registration No. 333-03579
===============================================================================
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 jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
50 Datastream Plaza
Greenville, South Carolina 29605
(Address of principal executive offices)
___________________
DATASTREAM SYSTEMS, INC.
STOCK OPTION PLAN
FOR DIRECTORS
(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)
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Common Stock, $.01 100,000 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 Statement No. 333-03579 has been increased
pursuant to adjustments under the Datastream Systems, Inc. Amended and
Restated Stock Option Plan for Directors 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 a registration fee in the amount of
$1,090.52 with the original filing on May 13, 1996 to register 100,000 shares
of Common Stock. No additional fee is required to register the additional
100,000 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
This Post-Effective Amendment No. 1 amends the Registration Statement
on Form S-8, No. 333-03579 (the "Registration Statement") of Datastream
Systems, Inc. (the "Company"), in accordance with Rule 416 promulgated under
the Securities Act of 1933, as amended (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 Statement
as a result of a 2-for-1 stock split of the Company's Common Stock effected
in the form of a stock dividend paid on January 30, 1998. The Company
previously paid a registration fee in the amount of $1,090.52 with the
original filing on May 13, 1996, to register 100,000 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 Company's 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 May 10, 1996, filed as part of
the signature page to the Company's Registration Statement
on Form S-8 (Registration No. 333-00080), filed on May 13,
1996, is expressly incorporated herein by reference.
99.1++ Stock Option Plan for Directors (as amended and restated
as of April 12, 1996).
99.2+++ Amendment to Stock Option Plan for Directors (as amended
and restated April 12, 1996), 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 C to the Company's
definitive Proxy Statement for the 1996 Annual Meeting of Stockholders
filed April 23, 1996 (File No. 000-25590).
+++ Incorporated herein by reference to Exhibit 10.2(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>
EXHIBIT INDEX
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 May 10, 1996, filed as part of
the signature page to the Company's Registration Statement
on Form S-8 (Registration No. 333-00080), filed on May 13,
1996, is expressly incorporated herein by reference.
99.1++ Stock Option Plan for Directors (as amended and restated
as of April 12, 1996).
99.2+++ Amendment to Stock Option Plan for Directors (as amended
and restated April 12, 1996), 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 C to the Company's
definitive Proxy Statement for the 1996 Annual Meeting of Stockholders
filed April 23, 1996 (File No. 000-25590).
+++ Incorporated herein by reference to Exhibit 10.2(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 Statement on Form S-8, No. 333-03579
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 Statement on Form S-8, No. 333-03579 (the
"Post-Effective Amendment"), of l00,000 shares (the "Shares") of the
Company's authorized common stock, $.01 par value per share, under the
Company's Amended and Restated Stock Option Plan for Directors (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
Form S-8 (333-03579) 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
