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As filed with the Securities and Exchange Commission on May 4, 1999
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
Registration Statement
Under The Securities Act Of 1933
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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)
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Consultant and Advisor Stock Plan
(Full title of the Plans)
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Gregory T. Skalla
12400 Network Boulevard
San Antonio, Texas 78249
(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be Offering Aggregate Registration
to be Registered Registered Price Per Offering Fee
Share Price
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 500,000 shares (1) $4.188 (2) $2,094,000 (2) $583
- --------------------------------------------------------------------------------------------------------------------------------
Total 500,000 shares $583
================================================================================================================================
</TABLE>
(1) Issuable upon award of stock grants available to be granted under the DATA
RACE, Inc. Consultant and Advisor Stock Plan.
(2) Pursuant to Rule 457(c), the offering price and registration fee are
computed on the basis of the average of the high and low prices of the
Common Stock, as reported by The Nasdaq National Market on April 28, 1999.
<PAGE>
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:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1998;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998;
3. The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1998;
4. The Company's Current Report on Form 8-K filed August 4, 1998; and
5. The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A of the Company, filed October 5,
1992, including any amendment and report filed 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 Company has amended its
Articles of Incorporation and added Article Ten adopting such
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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
- ----------- ----------------------
5 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
23.1 Consent of KPMG LLP.
23.2 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included
in opinion filed as Exhibit 5.1).
24 Power of Attorney (included on signature page of this
Registration Statement)
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.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of
2
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securities offered would not exceed that which was
registered) and any deviation from the low or 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 a 20 percent change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective 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 (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 the Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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
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question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
4
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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 San Antonio, State of Texas, on May 4, 1999.
DATA RACE, INC.
By: /s/ Gregory T. Skalla
---------------------------------
Gregory T. Skalla
Senior Vice President and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and officers of Data Race, Inc., hereby constitute and appoint W. B. Barker and
Gregory T. Skalla, and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and his name
place and stead, in any and all capacities, to execute any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same with all exhibits thereto, and all 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 might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents or any of them, or their 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 below by the following persons in the
capacities and on the dates indicated below.
Name Title Date
---- ----- ----
/s/ Dr. W. B. Barker President, Chief Executive May 4, 1999
- ------------------------- Officer and Director
Dr. W. B. Barker
/s/ Gregory T. Skalla Senior Vice President-Finance, May 4, 1999
- ------------------------- Chief Financial Officer, Treasurer
Gregory T. Skalla and Secretary (Principal Financial
and Accounting Officer)
/s/ Jeffrey P. Blanchard Chairman of the Board of May 4, 1999
- ------------------------- Directors
Jeffrey P. Blanchard
/s/ Matthew A. Kenny Director May 4, 1999
- -------------------------
Matthew A. Kenny
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Name Title Date
---- ----- ----
/s/ George R. Grumbles Director May 4, 1999
- -------------------------
George R. Grumbles
/s/ Dwight E. Lee Director May 4, 1999
- -------------------------
Dwight E. Lee
/s/ Edward A. Masi Director May 4, 1999
- -------------------------
Edward A. Masi
6
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EXHIBITS
INDEX TO EXHIBITS
-----------------
Exhibit No. Exhibit
- ----------- -------
5 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
23.1 Consent of KPMG LLP.
23.2 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included
in opinion filed as Exhibit 5.1).
25 Power of Attorney (included on signature page of this
Registration Statement)
<PAGE>
EXHIBIT 5
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
300 Convent Street, Suite 1500
San Antonio, Texas 78205
May 4, 1999
DATA RACE, Inc.
12400 Network Blvd.
San Antonio, Texas 78249
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"), available to be issued under the Company's
Consultant and Advisor Stock Plan (the "Plan"). The shares to be issued under
the Plan are hereinafter collectively referred to as the "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 issuance date of the Shares; (ii) the
Shares 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 Shares will be
issued in accordance with the terms of the Plan and any other applicable
documents; and (iv) the Shares when issued will be evidenced by appropriate
certificates properly executed and delivered.
Based upon the foregoing, we are of the opinion that the Shares to be
issued pursuant to the Plan have been validly authorized for issuance and, when
the Registration Statement has become effective under the Securities Act of
1933, as amended, and the Shares are issued and paid for in accordance with the
terms of the Plan, the Shares so issued will be validly issued, fully paid and
nonassessable. 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.
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
THE BOARD OF DIRECTORS
DATA RACE, INC.
We consent to the incorporation by reference herein of our report dated
September 2, 1998, relating to the balance sheets of DATA RACE, Inc. as of June
30, 1998 and 1997 and the related statements of operations, stockholders' equity
and cash flows for each of the years in the three-year period ended June 30,
1998, which report appears in the June 30, 1998 Annual Report on Form 10-K of
Data Race, Inc.
Our report dated September 2, 1998 contains an explanatory paragraph that states
that the Company has suffered recurring losses and incurred negative cash flows
from operations, which conditions raise substantial doubt about the Company's
ability to continue as a going concern. The financial statements do not include
any adjustments that might result from the outcome of that uncertainty.
/s/ KPMG LLP
---------------------------
KPMG LLP
May 4, 1999
San Antonio, Texas
