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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 1, 1997
REGISTRATION NO. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_______________
DATA RACE, INC.
(Exact name of registrant as specified in its charter)
TEXAS 74-2272363
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
12400 NETWORK BOULEVARD
SAN ANTONIO, TEXAS 78249
(Address, including zip code, of principal executive offices)
_______________
DATA RACE, INC.
1995 STOCK OPTION PLAN
(Full title of the Plan)
_______________
W. B. BARKER
12400 NETWORK BOULEVARD
SAN ANTONIO, TEXAS 78249
(210)263-2000
(Name, address and telephone number, including area code, of agent for service)
_______________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be Offering Price Aggregate Registration
to be Registered Registered Per Share Offering Price Fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 381,350 shares (1) $11.0889 (2) $4,228,752 (2) $1,282
- ---------------------------------------------------------------------------------------------------------
Common Stock, no par value 118,650 shares (3) $13.50 (4) $1,601,775 (4) $ 485
- ---------------------------------------------------------------------------------------------------------
Total 500,000 shares $ 5,830,527 $1,767
- ---------------------------------------------------------------------------------------------------------
</TABLE>
(1) Issuable upon exercise of options previously granted under the DATA RACE,
Inc. 1995 Stock Option Plan.
(2) For the purpose of calculating the registration fee pursuant to Rule 457
(h), the offering price and registration fee are computed on the basis of
the weighted average exercise price with respect to options previously
granted under the DATA RACE, Inc. 1995 Stock Option Plan.
(3) Issuable upon exercise of options available to be granted under the DATA
RACE, Inc. 1995 Stock Option Plan.
(4) For the purpose of calculating the registration fee pursuant to Rule
457(h), the offering price and registration fee are computed on the basis
of the average of the high and low prices of the Common Stock on March 31,
1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1996;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1996;
(d) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A of the Registrant, filed October
5, 1992, including any amendment or report filed hereafter for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment to this Registration Statement that
indicates that all Common Stock to which this Registration Statement relates has
been sold or that deregisters all Common Stock to which this Registration
Statement relates 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 such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02-1 of the Texas Business Corporation Act provides for
indemnification of directors and officers in certain circumstances. In addition,
the Texas Miscellaneous Corporation Law provides that a corporation may amend
its Articles of Incorporation to provide that no director shall be liable to the
corporation or its shareholders for monetary damages for an act or omission in
the director's capacity as a director, provided that the liability of a director
is not eliminated or limited (i) for any breach of the director's duty of
loyalty to the corporation or its shareholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or knowing violation of
law, (iii) any transaction from which such director derived an improper personal
benefit, or (iv) an act or omission for which the liability of a director is
expressly provided by an applicable statute. The
1
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Company has amended its Articles of Incorporation and added Article Ten adopting
such limitations on a director's liability. The Company's Articles of
Incorporation also provide in Article Ten, for indemnification of directors or
officers in connection with the defense or settlement of suits brought against
them in their capacities as directors or officers of the Company, except in
respect of liabilities arising from gross negligence or willful misconduct in
the performance of their duties.
Article VIII of the Company's bylaws provides for indemnification of
any person made a party to a proceeding by reason of such person's status as a
director, officer or employee of the Company, except in respect of liabilities
arising from negligence or misconduct in the performance of their duties.
An insurance policy obtained by the Company provides for
indemnification of officers and directors of the Company and certain other
persons against liabilities and expenses incurred by any of them in certain
stated proceedings and under certain stated conditions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description of Exhibit
- ---------- -----------------------
4.1 Form of Common Stock certificate of the
Registrant (a)
4.2 1995 Stock Option Plan of the Registrant (b)
5 Opinion of Akin, Gump, Strauss, Hauer &
Feld, L.L.P. (c)
23.1 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included
in the opinion filed as Exhibit 5 to this Registration
Statement)
23.2 Consent of KPMG Peat Marwick LLP (c)
24 Power of Attorney (included on signature page of this
Registration Statement)
- -------------------
(a) Filed as Exhibit to Form S-1 Registration Statement (No. 33-51170),
effective October 7, 1992, and incorporated herein by reference to
such Exhibit.
(b) Filed as Appendix to Proxy Statement filed with the Securities and
Exchange Commission on November 8, 1995, and incorporated herein by
reference to such Appendix.
(c) Filed herewith.
2
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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 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;
(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; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the 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 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 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 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 Securities 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
Securities 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, as
amended, 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 San Antonio, State of Texas on April 1, 1997.
DATA RACE, INC.
By: /s/ W. B. Barker
----------------------------
W. B. Barker
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints W. B. Barker and Gregory T. Skalla, and each of them, each with full
power to act without the other, his true and lawful attorneys-in-fact and
agents, each with full power of substitution and resubstitution for him and in
his name, place and stead, in any and all capacities, to sign any or all
amendments to this Registration Statement (including post-effective amendments),
and to file the same with all exhibits thereto and other documents in connection
therewith, with such changes as they may deem appropriate, with the Securities
and Exchange Commission, granting unto each of said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person hereby ratifying and
confirming that each of said attorneys-in-fact and agents or his 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 below by the following persons in the
capacities and on the dates indicated:
NAME TITLE DATE
---- ----- ----
/s/ W. B. Barker President, Chief Executive April 1, 1997
- ----------------------- Officer and Director
W. B. Barker
/s/ Gregory T. Skalla Vice President-Finance, Chief
- ------------------------ Financial Officer, Treasurer April 1, 1997
Gregory T. Skalla and Secretary (Principal
Financial and Accounting Officer)
/s/ Jeffrey P. Blanchard Chairman of the Board April 1, 1997
- ------------------------
Jeffrey P. Blanchard
/s/ Matthew A. Kenny Director April 1, 1997
- ------------------------
Matthew A. Kenny
/s/ George R. Grumbles Director April 1, 1997
- ------------------------
George R. Grumbles
/s/ Marcelo A. Gumucio Director April 1, 1997
- ------------------------
Marcelo A. Gumucio
/s/ Dwight E. Lee Director April 1, 1997
- ------------------------
Dwight E. Lee
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EXHIBITS
INDEX TO EXHIBITS
-----------------
Exhibit No. Exhibit Numbered Page
- ---------- ------- -------------
4.1 Form of Common Stock certificate of the Registrant (a)
4.2 1995 Stock Option Plan of the Registrant (b)
5 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (c)
23.1 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
(included in the opinion filed as Exhibit 5 to this
Registration Statement)
23.2 Consent of KPMG Peat Marwick LLP (c)
24 Power of Attorney (included on signature page of this
Registration Statement)
______________________
(a) Filed as Exhibit to Form S-1 Registration Statement (No. 33-51170),
effective October 7, 1992, and incorporated herein by reference to such
Exhibit.
(b) Filed as Appendix to Proxy Statement filed with the Securities and Exchange
Commission on November 8, 1995, and incorporated herein by reference to
such Appendix.
(c) Filed herewith.
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EXHIBIT 5
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
1500 NATIONSBANK PLAZA
300 CONVENT STREET
SAN ANTONIO, TEXAS 78205
(210) 270-0800
April 1, 1997
DATA RACE, Inc.
12400 Network Blvd.
San Antonio, Texas 78249
Gentlemen:
We have acted as counsel to DATA RACE, Inc. (the "Company") in
connection with the preparation for filing with the Securities and Exchange
Commission of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended. The Registration
Statement relates to 500,000 shares of the Company's Common Stock, without par
value (the "Common Stock"), issuable upon exercise of options previously granted
and to be granted under the Company's 1995 Stock Option Plan (the "Plan"). The
shares to be issued upon exercise of the options granted under the Plan are
hereinafter collectively referred to as the "Plan Shares."
We have examined such corporate records, documents, instruments and
certificates of the Company and have received such representations from the
officers and directors of the Company and have reviewed such questions of law as
we have deemed necessary, relevant or appropriate to enable us to render the
opinion expressed herein. In such examination, we have assumed the genuineness
of all signatures and the authenticity of all documents, instruments, records
and certificates submitted to us as originals.
We have further assumed that:
(i) all applicable state securities laws will have been complied with,
as of any option exercise date;
(ii) the shares of Common Stock issuable upon exercise of the options
granted under the Plan will be validly authorized and available
for issuance (as of the date hereof, there are a sufficient number
of shares of Common Stock authorized, unissued and reserved to
cover the issuance of the maximum number of shares of Common Stock
currently provided for under the Plan);
(iii) the options granted under the Plan will be exercised in accordance
with the terms of the Plan and any other applicable documents;
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AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
DATA RACE, Inc.
April 1, 1997
Page 2
- -----------------------------------------------------
(iv) the shares of Common Stock issued upon exercise of options granted
under the Plan will be evidenced by appropriate certificates
properly executed and delivered; and
(v) on the date of exercise, the options granted under the Plan (and
all documents related thereto) will be duly executed, as
applicable, authorized, issued and delivered; will constitute the
valid and binding obligations of the Company enforceable in
accordance with their respective terms; and will be entitled to
the benefits provided by the Plan.
Based upon the foregoing, we are of the opinion that the Plan Shares
will, if, as, and when the options granted pursuant to the Plan are exercised,
and upon issuance and delivery of the Plan Shares against payment therefor in
the manner contemplated by the Plan, be validly issued, fully paid and non-
assessable shares of Common Stock of the Company.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to this firm under the heading
"Legal Opinion" in the Information Statement forming a part thereof.
Very truly yours,
/s/ AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
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EXHIBIT 23.2
Independent Auditors' Consent
-----------------------------
Board of Directors
DATA RACE, Inc.
We consent to incorporation herein by reference of our report dated August 16,
1996, related to the balance sheets of DATA RACE, Inc., as of June 30, 1996 and
1995, and the related statements of operations, shareholders' equity, and cash
flows for each of the years in the three year period ended June 30, 1996, which
report appears in the June 30, 1996 annual report on Form 10-K of DATA RACE,
Inc. Our report refers to a change in the method of accounting for income taxes
in the year ended June 30, 1994.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
San Antonio, Texas
March 27, 1997
