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As filed with the Securities and Exchange Commission on August 19, 1999
Registration No.333-83595
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
POST-EFFECTIVE AMENDMENT NO.1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
DATA RACE, INC.
(Exact name of Registrant as specified in its charter)
12400 Network Boulevard
San Antonio, Texas 78249
(210) 263-2000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive office)
_________________________
<TABLE>
<S> <C> <C>
Texas 3661 74-2272363
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
_________________________
Gregory T. Skalla
DATA RACE, Inc.
12400 Network Boulevard
San Antonio, Texas 78249
(210) 263-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
Matthew R. Bair, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1500 NationsBank Plaza
300 Convent Street
San Antonio, Texas 78205
_________________________
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
_________________________
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [X] (333-83595)
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [_]
____________________
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to the Registration Statement on Form S-3
(File No. 333-83595) of DATA RACE, Inc. is being filed pursuant to Rule 462(d)
under the Securities Act of 1933, as amended, for the sole purpose of filing an
additional page to an exhibit previously filed with the Registration Statement
and, accordingly, shall become effective immediately upon filing with the
Securities and Exchange Commission. The contents of the Registration Statement
are hereby incorporated herein by reference.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits
Exhibits
3.1 Articles of Amendment to and Restatement of the Articles of
Incorporation of the Company, filed December 27, 1991. (a)
3.2 Articles of Correction to Articles of Amendment to and
Restatement of the Articles of Incorporation of the Company,
filed August 13, 1992. (a)
3.3 Articles of Amendment to the Articles of Incorporation of the
Company, filed August 21, 1992. (a)
3.4 Statement of Resolution Establishing Series B Participating
Cumulative Preferred Stock. (b)
3.5 Statement of Designation, Preferences and Rights of Series D
Convertible Preferred Stock. (c)
3.6 Statement of Designation, Preferences and Rights of Series E
Convertible Preferred Stock. (c)
3.7 Articles of Amendment to the Articles of Incorporation of the
Company, filed January 21, 1999. (e)
3.8 Statement of Designation, Preferences and Rights of Series F
Convertible Preferred Stock. (e)
3.9 Bylaws of the Company and Amendments to Bylaws. (a)(d)
5. Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (g)
10.1 Securities Purchase Agreement, dated June 25, 1999, between the
Company, Cranshire Capital, L.P., Kewyay Investments Ltd., and
Lionhart Investments Ltd. (f)
10.2 Registration Rights Agreement, dated June 25, 1999, between the
Company, Cranshire Capital, L.P., Kewyay Investments Ltd., and
Lionhart Investments Ltd. (f)
10.3 Warrants for June 1999 Private Placement. (f)
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)
24. Power of Attorney. *
___________________________
* Previously filed.
(a) Filed as an exhibit to Form S-1 Registration Statement No. 33-
51170, effective October 7, 1992.
(b) Filed as an exhibit to Form 10-K Annual Report for the fiscal
year ended June 30, 1997.
(c) Filed as an exhibit to Form 8-K Current Report filed August 4,
1998.
II-1
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(d) Filed as an exhibit to Form 10-Q Quarterly Report for the quarter
ended December 31, 1996.
(e) Filed as an exhibit to Form S-3 Registration Statement No. 333-
71319, effective April 20, 1999.
(f) Filed as an exhibit to Form 8-K Current Report filed July 7,
1999.
(g) Filed herewith.
II-2
<PAGE>
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-3 and has duly caused this Amendment No. 1 to
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
August 18, 1999.
DATA RACE, INC.
By: /s/ Dr. W. B. Barker
----------------------------------
Dr. W. B. Barker
President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated below.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ Dr. W. B. Barker President, Chief Executive Officer and August 18, 1999
- --------------------------------
Dr. W. B. Barker Director
/s/ Gregory T. Skalla Senior Vice President-Finance, Chief August 18, 1999
- --------------------------------
Gregory T. Skalla Financial Officer, Treasurer and Secretary
(Principal Financial and Accounting Officer)
/s/ Jeffrey P. Blanchard* Chairman of the Board of Directors August 18, 1999
- --------------------------------
Jeffrey P. Blanchard
/s/ Matthew A. Kenny* Director August 18, 1999
- --------------------------------
Matthew A. Kenny
/s/ George R. Grumbles* Director August 18, 1999
- --------------------------------
George R. Grumbles
/s/ Dwight E. Lee* Director August 18, 1999
- --------------------------------
Dwight E. Lee
</TABLE>
* By Gregory T. Skalla, attorney-in-fact pursuant to a Power of Attorney
previously filed.
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<PAGE>
INDEX TO EXHIBITS
Exhibits
3.1 Articles of Amendment to and Restatement of the Articles of
Incorporation of the Company, filed December 27, 1991. (a)
3.2 Articles of Correction to Articles of Amendment to and
Restatement of the Articles of Incorporation of the Company,
filed August 13, 1992. (a)
3.10 Articles of Amendment to the Articles of Incorporation of the
Company, filed August 21, 1992. (a)
3.11 Statement of Resolution Establishing Series B Participating
Cumulative Preferred Stock. (b)
3.12 Statement of Designation, Preferences and Rights of Series D
Convertible Preferred Stock. (c)
3.13 Statement of Designation, Preferences and Rights of Series E
Convertible Preferred Stock. (c)
3.14 Articles of Amendment to the Articles of Incorporation of the
Company, filed January 21, 1999. (e)
3.15 Statement of Designation, Preferences and Rights of Series F
Convertible Preferred Stock. (e)
3.16 Bylaws of the Company and Amendments to Bylaws. (a)(d)
5. Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (g)
10.1 Securities Purchase Agreement, dated June 25, 1999, between the
Company, Cranshire Capital, L.P., Kewyay Investments Ltd., and
Lionhart Investments Ltd. (f)
10.2 Registration Rights Agreement, dated June 25, 1999, between the
Company, Cranshire Capital, L.P., Kewyay Investments Ltd., and
Lionhart Investments Ltd. (f)
10.3 Warrants for June 1999 Private Placement. (f)
23.1 Consent of KPMG LLP.*
23.3 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in
opinion filed as Exhibit 5)
24. Power of Attorney.*
__________________________
* Previously filed.
(a) Filed as an exhibit to Form S-1 Registration Statement No. 33-
51170, effective October 7, 1992.
(b) Filed as an exhibit to Form 10-K Annual Report for the fiscal
year ended June 30, 1997.
(c) Filed as an exhibit to Form 8-K Current Report filed August 4,
1998.
<PAGE>
(d) Filed as an exhibit to Form 10-Q Quarterly Report for the quarter
ended December 31, 1996.
(e) Filed as an exhibit to Form S-3 Registration Statement No. 333-71319,
effective April 20, 1999.
(f) Filed as an exhibit to Form 8-K Current Report filed July 7, 1999.
(g) Filed herewith.
<PAGE>
EXHIBIT 5
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
300 Convent Street, Suite 1500
San Antonio, Texas 78205
(210) 281-7000
July 22, 1999
DATA RACE, Inc.
12400 Network Blvd.
San Antonio, Texas 78249
Gentlemen:
We have acted as counsel to DATA RACE, Inc., a Texas corporation (the
"Company"), in connection with the registration by the Company under the
Securities Act of 1933, as amended (the "Act"), pursuant to the Company's
registration statement on Form S-3 (the "Registration Statement"), covering the
sale from time to time by the selling shareholders named in the Registration
Statement (the "Selling Shareholders") of an aggregate of up to 2,772,843 shares
of the Company's Common Stock (the "Common Stock"), consisting of 2,132,955
outstanding shares of Common Stock (the "Outstanding Shares"), and 639,888
shares of Common Stock issuable upon exercise of outstanding stock purchase
warrants (collectively, the "Warrants").
We have, as counsel, examined such corporate records, certificates and
other documents and reviewed such questions of law as we have deemed necessary,
relevant or appropriate to enable us to render the opinion expressed below. In
rendering such opinion, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures and the authenticity of all documents
examined by us. As to various questions of fact material to such opinion, we
have relied upon representations of the Company.
We have further assumed that:
a) all applicable state securities laws will have been complied with in
connection with each Warrant exercise;
b) at the time of the issuance of the shares of Common Stock upon the
exercise of the Warrants, the Company will have sufficient authorized
and unissued shares of Common Stock available for issuance;
c) the Warrants will be exercised in accordance with the applicable
warrant agreements; and
<PAGE>
d) the shares of Common Stock issuable upon exercise of the Warrants
will, upon issuance, be evidenced by appropriate certificates properly
executed and delivered.
Based upon the foregoing, and subject to such assumptions and
qualifications, we are of the opinion that:
1. The Outstanding Shares are duly authorized, validly issued, fully paid
and nonassessable.
2. When issued to the holders of the Warrants upon the exercise thereof
in accordance with the respective warrant agreements (including the
payment of the exercise price specified therein), the shares of Common
Stock issuable upon exercise of the Warrants will be duly authorized,
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference of this firm under the caption
"Legal Opinions" in the Prospectus contained therein. This opinion is to be used
only in connection with the issuance of the Common Stock while the Registration
Statement is in effect.
Very truly yours,
/s/ AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
