As filed with the Securities and Exchange Commission August 17, 2000.
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)
Amended and Restated Datastream Systems, Inc. Employee Stock Purchase Plan
(Full Title of the Plans)
C. Alex Estevez
Datastream Systems, Inc.
50 Datastream Plaza
Greenville, South Carolina 29605
(864) 422-5001
(Name, address, and telephone number of agent for service)
Copy to:
Steven L. Pottle, Esq.
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street, NW
Atlanta, Georgia 30309-3424
(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 Price Aggregate Registration
Registered(1)Per Share (2) Offering Price Fee
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Common Stock, $.01 par 200,000 $8.72 $1,744,000.00 $461.00
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
August 10, 2000.
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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 Amended and Restated Datastream
Systems, Inc. Employee Stock Purchase 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
Not required to be filed with the Commission. 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, 1999;
(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,
1999; 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
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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 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.
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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'
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. Notwithstanding 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;
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(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.
(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 state of South Carolina,
on the 17th day of August, 2000.
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 has been signed by the following persons on the 17th
day of August, 2000 in the capacities indicated.
Title
Signature
/s/ Larry G. Blackwell President, Chief Executive Officer and Director
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Larry G. Blackwell (principal executive officer)
/s/ C. Alex Estevez Chief Financial Officer
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C. Alex Estevez (principal financial and accounting officer)
--------------------- Director
Richard T. Brock
/s/ Ira D. Cohen Director
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Ira D. Cohen
/s/ John M. Sterling 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).
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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
August 11, 2000
Datastream Systems, Inc.
50 Datastream Plaza
Greenville, South Carolina 29605
Re: Amended and Restated Datastream Systems, Inc. Employee Stock
Purchase Plan
Ladies and Gentlemen:
We have acted as counsel for Datastream Systems, Inc., a Delaware
corporation (the "Corporation"), in connection with the referenced
Registration Statement on Form S-8 (the "Registration Statement") being filed
by the Corporation with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended, and covering
200,000 shares of the Corporation's common stock, $0.01 par value (the
"Common Stock"), that may be issued pursuant to the Amended and Restated
Datastream Systems, Inc. Employee Stock Purchase Plan (the "Plan"). This
Opinion Letter is rendered pursuant to Item 8 of Form S-8 and Item 601(b)(5)
of Regulation S-K.
In the capacity described above, we have considered such matters of law
and of fact, including the examination of originals or copies, certified or
otherwise identified to our satisfaction, of such records and documents of
the Corporation, certificates of public officials and such other documents as
we have deemed appropriate as a basis for the opinions hereinafter set
forth. The opinions set forth herein are limited to the laws of the State of
Delaware, in reliance solely on published general compilations thereof as of
the date hereof.
1211 East Morehead 3605 Glenwood Avenue, 601 Pennsylvania
Street Suite 310 Avenue, N.W.
P. O. Drawer 34009 P. O. Drawer 31107 North Building, 11th
Charlotte, NC Raleigh, NC 27622-1107 Floor
28234-4009 919-420-2200 Washington, DC
704-331-6000 Fax: 919-420-2260 20004-2601
Fax: 704-334-2014 202-756-3300
Fax: 202-756-3333
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Datastream Systems, Inc.
August 11, 2000
Page 2
Based upon the foregoing, it is our opinion that the 200,000 shares of
Common Stock covered by the Registration Statement and to be issued pursuant
to the Plan, when issued in accordance with the terms and conditions of the
Plan, will be legally and validly issued, fully paid and nonassessable.
This Opinion Letter is provided to you for your benefit and for the
benefit of the Commission, in each case, solely with regard to the
Registration Statement, may be relied upon by you and the Commission only in
connection with the Registration Statement, and may not be relied upon by any
other person or for any other purpose without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement.
Very truly yours,
ALSTON & BIRD LLP
By: /s/ Steven L. Pottle
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Steven L. Pottle, Partner
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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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August 16, 2000
