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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)*
DATA RACE, INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, no par value
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(Title of Class of Securities)
237842109
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(CUSIP Number)
John M. Liviakis, 2420 "K" St., #220, Sacramento, CA 95816, (916) 448-6084
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
September 1, 1998
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box. [ ]
NOTE: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Section 240.13d-7
for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
POTENTIAL PERSONS WHO ARE TO RESPOND TO THE COLLECTION OF INFORMATION
CONTAINED IN THIS FORM ARE NOT REQUIRED TO RESPOND UNLESS THE FORM
DISPLAYS A CURRENTLY VALID OMB CONTROL NUMBER.
SEC 1746 (2-98)
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CUSIP No. 237842109
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(1) Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
Liviakis Financial Communications, Inc. 68-0311399
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(2) Check the Appropriate Box if a Member of a Group (a) [ ]
(See Instructions) (b) [X]
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(3) SEC Use Only
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(4) Source of Funds (See Instructions)
OO, WC
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(5) Check if Disclosure of Legal Proceedings Is Required Pursuant
to Items 2(d) or 2(e) [ ]
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(6) Citizenship or Place of Organization
California
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(7) Sole Voting Power
Number of 1,446,475
Shares --------------------------------------------------------
Beneficially (8) Shared Voting Power
Owned by --
Each --------------------------------------------------------
Reporting (9) Sole Dispositive Power
Person With 1,446,475
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(10) Shared Dispositive Power
--
--------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
1,446,475
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X]
(see Instructions)
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(13) Percent of Class Represented by Amount in Row (11)
10.0%
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(14) Type of Reporting Person (See Instructions)
CO
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CUSIP No. 237842109
--------------
(1) Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
John M. Liviakis
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(2) Check the Appropriate Box if a Member of a Group (a) [ ]
(See Instructions) (b) [X]
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(3) SEC Use Only
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(4) Source of Funds (See Instructions)
PF
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(5) Check if Disclosure of Legal Proceedings Is Required Pursuant
to Items 2(d) or 2(e) [ ]
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(6) Citizenship or Place of Organization
United States
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(7) Sole Voting Power
Number of 61,400
Shares --------------------------------------------------------
Beneficially (8) Shared Voting Power
Owned by 1,446,475
Each --------------------------------------------------------
Reporting (9) Sole Dispositive Power
Person With 61,400
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(10) Shared Dispositive Power
1,446,475
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person
1,507,875
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X]
(see Instructions)
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(13) Percent of Class Represented by Amount in Row (11)
10.4%
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(14) Type of Reporting Person (see Instructions)
IN
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CUSIP No. 237842109
---------------------
1) Names of Reporting Persons
S.S. or I.R.S. Identification Nos. of Above Persons
Renee A. Liviakis
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(2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [ X ]
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(3) SEC Use Only
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(4) Source of Funds (See Instructions) --
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(5) Check if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e)
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(6) Citizenship or Place of Organization
United States
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(7) Sole Voting Power
Number of --
Shares --------------------------------------------------------
Beneficially by (8) Shared Voting Power
Owned by 1,446,475
Each --------------------------------------------------------
Reporting (9) Sole Dispositive Power
Person With --
--------------------------------------------------------
(10) Shared Dispositive Power
1,446,475
--------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
1,446,475
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(12) Check if Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions) [ X ]
---------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
10.0%
---------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions)
IN
---------------------------------------------------------------------
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CUSIP No. 237842109
---------------------
(1) Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
Robert B. Prag
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(2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
------------------------------------------------------------------
(B) [ X ]
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(3) SEC Use Only
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(4) Source of Funds (See Instructions)
00
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(5) Check if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e)
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(6) Citizenship or Place of Organization
United States
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(7) Sole Voting Power
Number of 468,825
Shares --------------------------------------------------------
Beneficially by (8) Shared Voting Power
Owned by 1,446,475
Each --------------------------------------------------------
Reporting (9) Sole Dispositive Power
Person With 468,825
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(10) Shared Dispositive Power
1,446,475
--------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
1,915,300
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions)
---------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
13.2%
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(14) Type of Reporting Person (See Instructions)
IN
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1. SECURITY AND ISSUER.
The title of the class of equity securities to which this statement
relates is common stock, no par value (the "Common Stock"), issued by Data Race,
Inc., a Texas corporation (the "Corporation"). The principal offices of the
Corporation are located at 12400 Network Boulevard, San Antonio, Texas 78249.
2. IDENTITY AND BACKGROUND.
This amended statement is filed by Liviakis Financial Communications,
Inc., a California corporation ("LFC"), John M. Liviakis ("JML"), Renee A.
Liviakis ("RAL") and Robert B. Prag ("RBP").
LFC's principal business is as a consultant in the areas of financial
and investor public relations and communications. LFC's principal business and
principal office address is 2420 "K" Street, Suite 220, Sacramento, California
95816.
LFC's President is JML, its Senior Vice President is RBP, and its
Treasurer, Chief Financial Officer and Secretary is RAL. JML, RBP and RAL are
the only executive officers of LFC. The activities associated with these
positions constitute the principal occupation and employment of JML, RBP and
RAL. JML, RBP and RAL are LFC's only directors, and JML and RAL are its sole
stockholders. JML, RBP and RAL are citizens of the United States, and their
business address is LFC's principal business address listed above.
During the last five years, none of LFC, JML, RBP and RAL has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), and during such period none of them has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction, the
result of which was to subject such person to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
This Amendment No. 1 to Schedule 13D is being filed to include JML and
RAL within the group filing this joint statement and to report (i) 1,446,475
shares of Common Stock held by LFC on September 3, 1998, (ii) 61,400 shares of
Common Stock held by JML on September 3, 1998, and (iii) 468,825 shares of
Common Stock held by RBP on September 3, 1998.
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1,406,475 and 468,825 shares of Common Stock were issued to LFC and RBP,
respectively, by the Corporation pursuant to a Consulting Agreement dated
effective as of July 13, 1998 by and between the Corporation and LFC (the
"Consulting Agreement"). Under the Consulting Agreement, LFC undertakes to
perform certain investor communications, financial and investor public
relations, and related services for the Corporation. A copy of the Consulting
Agreement was filed with the original Schedule 13D hereto as Exhibit "A".
From August 28, 1998 through September 1, 1998, LFC purchased 40,000
shares of Common Stock in the open market at an aggregate cost of $57,458. The
source of funds for those purchases was LFC's working capital. On August 28,
1998, JML purchased 61,400 shares of Common Stock in the open market at an
aggregate cost of $100,357. The source of funds for those purchases was JML's
personal funds.
4. PURPOSE OF TRANSACTION.
An aggregate of 1,875,300 shares of Common Stock were issued to LFC and
RBP pursuant to the Consulting Agreement in consideration for consulting
services to be performed by LFC for the Corporation. An aggregate of 101,400
shares of Common Stock were purchased by LFC and JML for investment purposes.
LFC, JML and RBP have acquired and intend to hold the shares of Common
Stock so acquired for investment purposes. LFC, JML, RAL and RBP may acquire
additional shares of Common Stock for investment purposes from time to time,
although they do not have any present plans to do so.
LFC, JML, RAL and RBP have no plans or proposals which relate to or
would result in: any extraordinary corporate transaction, such as a merger,
reorganization or liquidation involving the Corporation or any subsidiary of the
Corporation; the sale or transfer of a material amount of assets of the
Corporation or any of its subsidiaries; any change in the Corporation's present
Board of Directors or management; any material change in the present
capitalization or dividend policy of the Corporation; any material change in the
Corporation's business or corporate structure; any changes in the Corporation's
charter, bylaws, or instruments corresponding thereto or other actions which may
impede the acquisition of control of the Corporation by any person; a class of
securities of the Corporation being delisted from a national securities exchange
or ceasing to be authorized to be quoted in an inter-dealer quotation system of
a registered national securities association; a class of equity securities of
the Corporation becoming eligible for termination of registration pursuant to
Section 12(g)(4) of the Securities Exchange Act of 1934, as amended; or any
similar action.
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5. INTEREST IN SECURITIES OF THE ISSUER.
LFC has the sole power to direct the vote or disposition of the
1,446,475 shares of Common Stock owned by LFC. LFC would exercise its power to
direct the vote or disposition of such securities through its officers and
directors, JML, RBP and RAL.
JML has the sole power to direct the vote or disposition of the 61,400
shares of Common Stock owned by JML. RAL has a community property interest in
such shares.
RBP has the sole power to direct the vote or disposition of the 468,825
shares of Common Stock owned by RBP.
LFC disclaims any beneficial interest in any shares of Common Stock
owned by JML or RBP. RBP disclaims any beneficial interest in any shares of
Common Stock owned by LFC and JML, other than such beneficial interest in shares
owned by LFC as arises out of RBP's service as an officer and director of LFC.
JML and RAL disclaim any beneficial interest in any shares of Common Stock owned
by RBP.
The 1,446,475 shares of Common Stock that LFC owns, and as to which LFC
has the sole power to direct the vote or disposition, represent approximately
10.0% of that class of securities. The 61,400 shares of Common Stock that JML
owns, and as to which JML has the sole power to direct the vote or disposition,
represent approximately 0.4% of that class of securities. The 468,825 shares of
Common Stock that RBP owns, and as to which RBP has the sole power to direct the
vote or disposition, represent approximately 3.2% of that class of securities.
The 1,507,875 shares of Common Stock that LFC and JML in the aggregate own, and
as to which either LFC or JML has the sole power to direct the vote or
disposition, represent approximately 10.4% of that class of securities. The
1,976,700 shares of Common Stock that LFC, JML and RBP in the aggregate own, and
as to which LFC, JML or RBP has the sole power to direct the vote or
disposition, represent approximately 13.6% of that class of securities. In each
case, the calculation of the percentage of the class of Common Stock is based on
the 14,537,140 shares of Common Stock which the Corporation advised LFC were
outstanding on August 24, 1998.
During the past sixty days, LFC, JML, RAL and RBP have not engaged in
any transactions in Common Stock, other than as hereinafter set forth:
(a) On August 28, 1998, LFC purchased 10,000 shares of Common Stock at a
price of $1.59 per share on the Nasdaq National Market System.
(b) On August 31, 1998, LFC purchased 1,500 shares of Common Stock at a
price of $1.34 per share on the Nasdaq National Market System.
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(c) On August 31, 1998, LFC purchased 8,500 shares of Common Stock at a
price of $1.38 per share on the Nasdaq National Market System.
(d) On September 1, 1998, LFC purchased 15,000 shares of Common Stock at
a price of $1.34 per share on the Nasdaq National Market System.
(e) On September 1, 1998, LFC purchased 5,000 shares of Common Stock at
a price of $1.38 per share on the Nasdaq National Market System.
(f) On August 28, 1998, JML purchased 1,000 shares of Common Stock at a
price of $1.53 per share on the Nasdaq National Market System.
(g) On August 28, 1998, LFC purchased 400 shares of Common Stock at a
price of $1.56 per share on the Nasdaq National Market System.
(h) On August 28, 1998, LFC purchased 60,000 shares of Common Stock at a
price of $1.59 per share on the Nasdaq National Market System.
6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
The Corporation entered into the Consulting Agreement with LFC in
consideration for consulting services to be performed by LFC pursuant to the
Consulting Agreement from July 13, 1998 through March 15, 1999. In the
Consulting Agreement, the Corporation grants to LFC and RBP certain rights to
have shares of Common Stock registered under the Securities Act of 1933, as
amended.
Except for the Consulting Agreement, there are no contracts,
arrangements, understandings or relationships between the persons named in Item
2 above and any person with respect to any securities of the Corporation.
7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit A - Consulting Agreement, dated effective July 13, 1998, by and
between the Corporation and LFC.
Exhibit B - Agreement of LFC and RBP pursuant to Rule 13d-1(f).
Exhibit C - Agreement among LFC, JML, RAL and RBP pursuant to
Rule 13d-1(f).
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After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: September 3, 1998 LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
By:/s/ John M. Liviakis
---------------------------------
John M. Liviakis, President
/s/ John M. Liviakis
------------------------------------
John M. Liviakis
/s/ Renee A. Liviakis
------------------------------------
Renee A. Liviakis
/s/ Robert B. Prag
------------------------------------
Robert B. Prag
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EXHIBIT "C"
FOUR PARTY JOINT FILING AGREEMENT
Liviakis Financial Communications, Inc., John M. Liviakis, Renee A.
Liviakis and Robert B. Prag (collectively the "Parties" and individually a
"Party") hereby agree that they shall file a single statement on Schedule 13D
(as amended from time to time, the "Statement") with respect to their beneficial
ownership of shares of Common Stock (the "Securities") of Data Race, Inc., a
Texas corporation, on behalf of and in satisfaction of the obligations of all of
the Parties and that they shall amend the Statement from time to time as
required by rules promulgated under the Securities Exchange Act of 1934, as
amended.
Each of the Parties represents and warrants that such Party is eligible
to use Schedule 13D with respect to information regarding the Securities and
agrees to assume responsibility for the timely filing of the Statement and any
amendments thereto. Each of the Parties hereby assumes responsibility for the
completeness and accuracy of the information concerning such Party contained in
the Statement. No Party shall be responsible for the completeness and accuracy
of the information contained in the Statement concerning the other Parties,
unless such Party knows or has reason to believe that such information is
incomplete or inaccurate. The execution of the Statement, including any
amendment thereto, by one of the Parties shall constitute a representation by
such Party that the information concerning such Party contained therein is
complete and accurate and that such Party neither knows nor has any reason to
believe that the information concerning the other Parties contained therein is
either incomplete or inaccurate.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but which together shall constitute one and
the same instrument.
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In Witness Whereof, the Parties have executed this Joint Filing
Agreement this third day of September, 1998.
LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
By: /s/ John M. Liviakis
---------------------------------
/s/ John M. Liviakis
------------------------------------
John M. Liviakis
/s/ Renee A. Liviakis
------------------------------------
Renee A. Liviakis
/s/ Robert B. Prag
------------------------------------
Robert B. Prag
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