As filed with the Securities and Exchange Commission on March 15, 2001
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 incorporation or (I.R.S. employer
organization) identification number)
6509 Windcrest, Suite 120
Plano, Texas 75024
(Address, including zip code, of principal executive offices)
_______________
2000 Stock Option Plan
(Full title of the Plans)
_______________
James G. Scogin
6509 Windcrest, Suite 120
Plano, Texas 75024
(972) 265-4000
(Name, address and telephone number, including area code, of agent for service)
_______________
CALCULATION OF REGISTRATION FEE
===================================================================================================================
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be Offering Aggregate Registration
to be Registered Registered Price Per Offering Price Fee
Share
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Common Stock, no par value 414,000 shares (1) $ 4.418 (3) $ 1,829,052 (3) $ 457.26
-------------------------------------------------------------------------------------------------------------------
Common Stock, no par value 836,000 shares (2) $ .6875 (4) $ 574,750 (4) $ 143.69
-------------------------------------------------------------------------------------------------------------------
Total 1,250,000 shares $ 2,403,802 $ 600.95
===================================================================================================================
(1) Issuable upon exercise of stock options previously granted under the 2000
Stock Option Plan.
(2) Issuable upon exercise of stock options available to be granted under the
2000 Stock Option Plan.
(3) 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.
(4) 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 March 12, 2001.
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, 2000;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000;
3. The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 2000;
4. The Company's Current Report on Form 8-K filed November 28, 2000;
5. The Company's Current Report on Form 8-K filed January 12, 2001;
6. The Company's Current Report on Form 8-K filed March 7, 2001 (as
amended by Form 8-K/A filed March 8, 2001); and
7. 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)
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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 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 Jackson Walker L.L.P. (a)
23.1 Consent of KPMG LLP. (a)
23.2 Consent of Jackson Walker L.L.P. (included in opinion filed as
Exhibit 5).
24 Power of Attorney (included on signature page of this
Registration Statement)
99 2000 Stock Option Plan (b)
--------------------------------------------------------------------------------
(a) Filed herewith.
(b) Exhibit has previously been filed as Appendix A to the Company's
Definitive Proxy Statement (file no. 000-20706) filed on October 3,
2000, and incorporated herein by reference.
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,
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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
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
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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 Plano, State of Texas, on March 11, 2001.
DATA RACE, INC.
By: /s/ Michael McDonnell
-----------------------------
Michael McDonnell, President
and Chief Executive Officer
By: /s/ James G. Scogin
----------------------------
James G. Scogin, Senior
Vice-President, Chief Financial
Officer, Secretary and Treasurer
(Principal Financial and
Accounting 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 Michael McDonnell and
James G. Scogin, 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/ Michael McDonnell President, Chief Executive Officer and Director March 11, 2001
---------------------------
Michael McDonnell
/s/Jeffrey P. Blanchard Chairman of the Board of Directors March 11, 2001
---------------------------
Jeffrey P. Blanchard
/s/Matthew A. Kenny Director March 11, 2001
---------------------------
Matthew A. Kenny
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Name Title Date
---- ----- ----
/s/George R. Grumbles Director March 11, 2001
---------------------------
George R. Grumbles
/s/Tom Bishop Director March 11, 2001
---------------------------
Tom Bishop
/s/Byron Smith Director March 11, 2001
---------------------------
Byron Smith
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EXHIBITS
INDEX TO EXHIBITS
-----------------
Exhibit No. Exhibit
----------- -------
5 Opinion of Jackson Walker L.L.P. (a)
23.1 Consent of KPMG LLP. (a)
23.2 Consent of Jackson Walker L.L.P. (included in opinion filed as
Exhibit 5.)
24 Power of Attorney (included on signature page of this Registration
Statement)
99 2000 Stock Option Plan (b)
------------
(a) Filed herewith.
(b) Exhibit has previously been filed as appendix A of the Company's Definitive
Proxy Statement (file no. 000-20706) filed on October 3, 2000, and
incorporated herein by reference.
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