As filed with the Securities and Exchange Commission May 21, 1999.
File No. 333-_______
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
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. Argentinean Stock Option Plan
Datastream Systems, Inc. Australian Stock Option Plan
Datastream Systems, Inc. German Stock Option Plan
Datastream Systems, Inc. 1998 Singapore Stock Option Plan
(Full Title of the Plans)
C. Alex Estevez Copy to:
Chief Financial Officer
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
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Offering Price Aggregate Registration
Registered(1)Per Share (2) Offering Price Fee
(2)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Common Stock, $.01 par 41,315 $12.00 $495,780 $137.83
value
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
5,000 9.25 46,250 12.86
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
403,685 11.875 4,793,759 1,332.67
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Total.................. 450,000 $5,335,789 $1,483.36
- --------------------------------------------------------------------------------
(1) The total number of shares to be registered includes 125,000 shares
which may be granted pursuant to the Datastream Systems, Inc. Argentinean
Stock Option Plan, 75,000 shares pursuant to the Datastream Systems, Inc.
Australian Stock Option Plan, 125,000 shares pursuant to the Datastream
Systems, Inc. German Stock Option Plan, and 125,000 shares pursuant to the
Datastream Systems, Inc. Singapore Stock Option Plan. As of the date
hereof, 46,315 shares under the Datastream Systems, Inc. 1998 Singapore
Stock Option Plan were subject to outstanding option grants under such
plan. 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 exercise price per share for 46,315 shares
presently subject to outstanding options, and for the remaining 403,685
shares, 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 May 18, 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 each of the (1) Datastream Systems, Inc.
Argentinean Stock Option Plan, (2) Datastream Systems, Inc. Australian Stock
Option Plan, (3) Datastream Systems, Inc. German Stock Option Plan, and
(4) Datastream Systems, Inc. 1998 Singapore Stock Option Plan (collectively,
the "Plans"), 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
II-1
<PAGE>
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 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
<PAGE>
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 Peat Marwick LLP
24 Power of Attorney (included on signature page)
- --------------------
* 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 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;
(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.
II-3
<PAGE>
(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.
II-4
<PAGE>
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
21rst day of May, 1999.
DATASTREAM SYSTEMS, INC.
By: /s/ Larry G. Blackwell
----------------------
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 21rst day of May, 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 accounting
C. Alex Estevez officer)
/s/Richard T. Brock Director
- ------------------------
Richard T. Brock
/s/ Ira D. Cohen Director
- ------------------------
Ira D. Cohen
/s/ John M. Sterling Jr. Director
- ------------------------
John M. Sterling, Jr.
____________________________ Director
Kenneth D. Tracy
II-5
<PAGE>
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 Peat Marwick LLP
24 Power of Attorney (included on signature page)
- --------------------
* 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 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
May 21, 1999
Datastream Systems, Inc.
50 Datastream Plaza
Greenville, South Carolina 29605
Re: Datastream Systems, Inc. Argentinean Stock Option Plan,
Australian Stock Option Plan, German Stock Option Plan and
1998 Singapore 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:
(1) 125,000 shares of the Company's authorized common stock, $.01 par
value per share (the "Common Stock") under the Datastream Systems, Inc.
Argentinean Stock Option Plan; (2) 75,000 shares of Common Stock under
the Datastream Systems, Inc. Australian Stock Option Plan; (3) 125,000
shares of Common Stock under the Datastream Systems, Inc. German Stock
Option Plan; and (4) 125,000 shares of Common Stock under the
Datastream Systems, Inc. 1998 Singapore Stock Option Plan
(collectively, the "Plans").
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 Plans, 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 Plans will be,
<PAGE>
Datastream Systems, Inc.
May 21, 1999
Page 2
when issued in accordance with the terms of each such plan, legally
issued, fully paid and non-assessable.
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
---------------------------
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 report incorporated herein by reference.
Greenville, South Carolina /s/ KPMG Peat Marwick LLP
-------------------------
May 21, 1999
