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As filed with the Securities and Exchange Commission on February ___, 1999
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)
_______________
1998 Stock Option Plan
1997 Stock Option Plan
(Full title of the Plans)
_______________
W. B. Barker
12400 Network Boulevard
San Antonio, Texas 78249
(Name, address and telephone number, including area code, of agent for service)
_______________
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<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================
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 438,694 shares (1) $2.23 (6) $ 978,288(6) $ 272
- ----------------------------------------------------------------------------------------------------
Common Stock, no par value 61,306 shares (2) $5.41 (5) $ 331,665(5) $ 93
- ----------------------------------------------------------------------------------------------------
Common Stock, no par value 145,000 shares (3) $3.63 (6) $ 526,350(6) $ 147
- ----------------------------------------------------------------------------------------------------
Common Stock, no par value 855,000 shares (4) $5.41 (5) $4,625,550(5) $1,286
- ----------------------------------------------------------------------------------------------------
Total 1,500,000 shares $1,798
====================================================================================================
</TABLE>
(1) Issuable upon exercise of stock options previously granted under the 1997
Stock Option Plan.
(2) Issuable upon exercise of stock options available to be granted under the
1997 Stock Option Plan.
(3) Issuable upon exercise of stock options previously issued under the 1998
Stock Option Plan.
(4) Issuable upon the exercise of stock options available to be granted under
the 1998 Stock Option Plan.
(5) 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 February 10,
1999.
(6) 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 currently
outstanding options.
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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:
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 Current Report on Form 8-K filed August 4, 1998; and
4. 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
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
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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. (a)
23.1 Consent of KPMG LLP. (a)
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)
_________________________________________________________________________
(a) Filed herewith.
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 securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum
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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 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.
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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 February 17, 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.
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<CAPTION>
Name Title Date
- --------------------------- --------------------------------------- -------------------
<S> <C> <C>
/s/ Dr. W. B. Barker President, Chief Executive Officer and February 17, 1999
- --------------------------- Director
Dr. W. B. Barker
/s/ Gregory T. Skalla Senior Vice President-Finance, Chief February 17, 1999
- --------------------------- Financial Officer, Treasurer and
Gregory T. Skalla Secretary (Principal Financial and
Accounting Officer)
/s/ Jeffrey P. Blanchard Chairman of the Board of Directors February 12, 1999
- ---------------------------
Jeffrey P. Blanchard
/s/ Matthew A. Kenny Director February 12, 1999
- ---------------------------
Matthew A. Kenny
/s/ George R. Grumbles Director February 12, 1999
- ---------------------------
George R. Grumbles
/s/ Dwight E. Lee Director February 11, 1999
- ---------------------------
Dwight E. Lee
Director February ___, 1999
- ---------------------------
Edward A. Masi
</TABLE>
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EXHIBITS
INDEX TO EXHIBITS
-----------------
Exhibit No. Exhibit
- ----------- -------
5 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (a)
23.1 Consent of KPMG LLP. (a)
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)
_________________________________________________________________________
(a) Filed herewith.
<PAGE>
EXHIBIT 5
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
300 Convent Street, Suite 1500
San Antonio, Texas 78205
February 12, 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 (i)
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 1997 Stock Option Plan; and (ii) 1,000,000 shares of Common
Stock issuable upon exercise of options previously granted and to be granted
under the Company's 1998 Stock Option Plan (together with 1997 Stock Option
Plan, the "Plans"). The shares to be issued upon exercise of the options granted
under the Plans 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) at the time of the
issuance of the Plan shares upon exercise of options granted under the Plans,
the Company will have sufficient authorized, but unissued shares of Common Stock
available for issuance; (iii) the options granted under the Plans will be
exercised in accordance with the terms of the Plans and any other applicable
documents; (iv) the shares of Common Stock issued upon exercise of options
granted under the Plans will be evidenced by appropriate certificates properly
executed and delivered; and (v) on the date of exercise, the options granted
under the Plans (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 Plans.
Based upon the foregoing, we are of the opinion that the Plan Shares will,
if, as, and when the options granted pursuant to the Plans are exercised, and
upon issuance and delivery of the Plan Shares against payment therefor in the
manner contemplated by the Plans, be validly issued,
<PAGE>
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.
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS 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 financials statements do not include
any adjustments that might result from the outcome of that uncertainty.
/s/ KPGM LLP
------------------------------
KPMG LLP
February 16, 1999
San Antonio, Texas
