As filed with the Securities and Exchange Commission June 28, 1999.
File No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DATASTREAM SYSTEMS, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 57-0813674
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
50 Datastream Plaza
Greenville, South Carolina 29605
(864) 422-5001
(Address, including zip code, and telephone number of Principal
Executive Offices)
Datastream Systems, Inc. 1998 Stock Option Plan
(Full Title of the Plans)
C. Alex Estevez Copy to:
Datastream Systems, Inc. B. Lynn Walsh, Esq.
50 Datastream Plaza Alston & Bird LLP
Greenville, South Carolina 29605 One Atlantic Center
(864) 422-5001 1201 West Peachtree Street, NW
(Name, address, and telephone number of Atlanta, Georgia 30309-3424
agent for service) (404) 881-7185
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Offering Aggregate Registration
Registered(1) Price Offering Fee
Per Share Price (2)
(2)
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Common Stock, $.01 750,000 $14.594 $10,945,500 $3,043.00
par value
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(1) Pursuant to Rule 416(a), this Registration Statement also
covers an 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) Determined in accordance with Rule 457(h), the registration
fee calculation is based on the average of the high and low
prices of the Registrant's Common Stock reported on the Nasdaq
National Market System on June 23, 1999.
<PAGE>
PART I INFORMATION REQUIRED IN The Section 10(a) Prospectus
The documents constituting Part I of this Registration Statement will be
sent or given to participants in the Datastream Systems, Inc. 1998 Stock Option
Plan (the "Plan"), as specified by Rule 428(b)(1) under the Securities Act of
1933, as amended (the "Securities Act of 1933").
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
Upon written or oral request, the Registrant will provide, without charge,
the documents incorporated by reference in Item 3 of Part II of this
Registration Statement. The documents are incorporated by reference in the
Section 10(a) prospectus. The Registrant will also provide, without charge, upon
written or oral request, other documents required to be delivered to employees
pursuant to Rule 428(b). Requests for the above mentioned information should be
directed to Allison K. Smith, Stock Plan Administrator, Datastream Systems,
Inc., 50 Datastream Plaza, Greenville, South Carolina 29605, telephone number
(864) 422-5001.
PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Registrant with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act
of 1934"), are incorporated herein by reference and deemed to be a part hereof:
(1) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998;
(2) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange Act of 1934 since December
31, 1998; and
(3) The description of the Registrant's Common Stock
contained in the Registrant's Registration Statement filed under
Section 12 of the Exchange Act of 1934, including all amendments
or reports filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein and filed prior to the
filing hereof shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein modifies
or supersedes such statement, and any statement contained herein or in any other
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 in any other subsequently filed document which also is
incorporated by reference herein modifies or supersedes such 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.
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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 the State of Delaware
provides generally that a corporation may indemnify any person who was or is a
party or is threatened to be made a party to 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, officer,
employee or agent of the corporation, or is or was serving at its request in
such capacity in another corporation or business association, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
In addition, pursuant to the authority of Delaware law, Article VII of the
Amended and Restated Certificate of Incorporation of the Registrant also
eliminates the monetary liability of directors to the Registrant and its
stockholders to the fullest extent permitted by Delaware law for breach of
fiduciary duty by a director.
Article XII of the Registrant's Bylaws also provides that the Registrant
will indemnify, to the fullest extent permitted by Delaware law, any person made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director, officer, employee or agent of the
Registrant, or was serving as a director, officer, employee or agent of another
company or other enterprise in which the Registrant owns or owned, directly or
indirectly, an equity interest or of which it may be a creditor.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is therefore unenforceable.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number Description
4.1* Amended and Restated Certificate of
Incorporation.
II-2
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4.1(a)** Amendment to Amended and Restated Certificate
of Incorporation, dated January 12, 1998.
4.2*** Bylaws.
4.4+ Specimen Stock Certificate.
5.1 Opinion of Alston & Bird LLP
23.1 Consent of Alston & Bird LLP (included in
Exhibit 5.1)
23.2 Consent of KPMG LLP
24 Power of Attorney (included on signature page)
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* Incorporated herein by reference to Exhibit 3.1 in the
Registrant's Form S-1 Registration Statement (File No.
33-89498).
** Incorporated herein by reference to Exhibit 3.1(a) in the
Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997 (File No. 000-25590).
*** Incorporated herein by reference to Exhibit 3.2 in the
Registrant's Form S-1 Registration Statement (File No.
33-89498).
+ Incorporated herein by reference to Exhibit 4.2 in the
Company's Registration Statement on Form S-1 (File No.
33-89498).
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this 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 this
Registration Statement. Not withstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low
or the high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii)To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to
such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
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(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities being offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in this
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 of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 the City of Greenville, South Carolina, on the 28th day of June,
1999.
DATASTREAM SYSTEMS, INC.
By: /s/ Larry G. Blackwell
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Larry G. Blackwell
Chairman,President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Larry G. Blackwell and C. Alex Estevez, and each
of them, with the power to act without the other, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her, and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed below by the following
persons as of the 28th day of June, 1999 in the capacities indicated.
Title
Signature
/s/ Larry G. Blackwell President, Chief Executive
- ---------------------- Officer and Director
Larry G. Blackwell (principal executive officer)
/s/ C. Alex Estevez Chief Financial Officer
- ---------------------- (principal financial and
C. Alex Estevez accounting officer)
Director
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Richard T. Brock
/s/ Ira D. Cohen Director
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Ira D. Cohen
/s/ John M. Sterling, Jr. Director
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John M. Sterling, Jr.
- ---------------------- Director
Kenneth D. Tracy
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EXHIBIT INDEX
Exhibit Number Description
4.1* Amended and Restated Certificate of
Incorporation.
4.1(a)** Amendment to Amended and Restated Certificate
of Incorporation, dated January 12, 1998.
4.2*** Bylaws.
4.4+ Specimen Stock Certificate.
5.1 Opinion of Alston & Bird LLP
23.1 Consent of Alston & Bird LLP (included in
Exhibit 5.1)
23.2 Consent of KPMG LLP
24 Power of Attorney (included on signature page)
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* Incorporated herein by reference to Exhibit 3.1 in the
Registrant's Form S-1 Registration Statement (File No.
33-89498).
** Incorporated herein by reference to Exhibit 3.1(a) in the
Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997 (File No. 000-25590).
*** Incorporated herein by reference to Exhibit 3.2 in the
Registrant's Form S-1 Registration Statement (File No.
33-89498).
+ Incorporated herein by reference to Exhibit 4.2 in the
Company's Registration Statement on Form S-1 (File No.
33-89498).
<PAGE>
Exhibit 5.1
Alston&Bird llp
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
404-881-7000
Fax: 404-881-7777
www.alston.com
June 28, 1999
Datastream Systems, Inc.
50 Datastream Plaza
Greenville, South Carolina 29605
Re: Datastream Systems, Inc. 1998 Stock Option Plan
Ladies and Gentlemen:
We have served as counsel for Datastream Systems, Inc., a
Delaware corporation (the "Company"), in connection with the
registration on a Form S-8 Registration Statement (the
"Registration Statement") under the Securities Act of 1933, as
amended, of 750,000 shares of the Company's common stock, $.01
par value per share (the "Common Stock") under the Datastream
Systems, Inc. 1998 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 of Common Stock subject to the Plan, as
appropriate, as we have deemed necessary and advisable.
Based upon the foregoing and having regard for such legal
considerations as we deem relevant, it is our opinion that the
shares of Common Stock under the Plan will be, when issued in
accordance with the terms of such plan, legally issued, fully
paid and non-assessable.
<PAGE>
Datastream Systems, Inc.
June 28, 1999
Page 2
We do hereby consent to the filing of this Opinion as
Exhibit 5.1 to the Registration Statement.
Very truly yours,
ALSTON & BIRD LLP
By: /s/ B. Lynn Walsh
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B. Lynn Walsh, Partner
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Datastream Systems, Inc.:
We consent to the use of our reports incorporated herein by reference.
Greenville, South Carolina /s/ KPMG LLP
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June 28, 1999
