-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TSd4qig9CBhq40XtpLE41ewpdQ6Vao2WXVTEkhNOeia6cLdgGEffP/KMvkAbVYo+ 9bs/GqfvQUEUY/no7t/+6w== 0000938481-98-000017.txt : 20030406 0000938481-98-000017.hdr.sgml : 20030406 19980417164955 ACCESSION NUMBER: 0000938481-98-000017 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980417 EFFECTIVENESS DATE: 19980417 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: DATASTREAM SYSTEMS INC CENTRAL INDEX KEY: 0000938481 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 570813674 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 333-03579 FILM NUMBER: 98596669 BUSINESS ADDRESS: STREET 1: 1200 WOODRUFF RD STREET 2: STE C 40 CITY: GREENVILLE STATE: SC ZIP: 29607 BUSINESS PHONE: 8644225001 MAIL ADDRESS: STREET 1: 50 DATASTREAM PLAZA CITY: GREENVILLE STATE: SC ZIP: 29605 S-8 1 FORM S-8 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) =============================================================================== 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. 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. 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 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). EX-5 2 EXHIBIT 5 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 EX-23.1 3 EXHIBIT 23.1 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 -----END PRIVACY-ENHANCED MESSAGE-----