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EXHIBIT 5
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
300 Convent Street, Suite 1500
San Antonio, Texas 78205
(210) 281-7000
July 12, 2000
DATA RACE, Inc.
6509 Windcrest Drive
Plano, Texas 75024
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 2,044,560 shares
of the Company's Common Stock (the "Common Stock"), consisting of 1,572,738
outstanding shares of Common Stock (the "Outstanding Shares"), and 471,822
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
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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.
