EXHIBIT 10.2
DATA RACE, INC.
SUBSCRIPTION AGREEMENT
----------------------
CONFIDENTIAL
- ------------
DATA RACE, Inc.
12400 Network Boulevard
San Antonio, Texas 78249
ATTN: President
1. SUBSCRIPTION. Liviakis Financial Communications, Inc. ("LFC") hereby agrees
------------
to purchase 977,778 shares (the "Shares") of common stock, no par value
("Common Stock"), of DATA RACE, Inc., a Texas corporation (the "Company"),
and 977,778 common stock purchase warrants (the "Warrants") to purchase an
aggregate of 977,778 shares of Common Stock (the "Warrant Shares"), on the
terms and conditions described herein. The purchase price for one Share and
one Warrant is $2.25. LFC agrees to purchase at least $1,100,000 of Shares
and Warrants on November 16, 1998, and agrees to purchase $1,100,000 of
additional Shares and Warrants on or before November 20, 1998. The date of
any respective purchase is referred to herein as the closing date.
2. ADDITIONAL PURCHASERS. The Company acknowledges that LFC has identified up
---------------------
to four other investors interested in participating in the purchase of the
Shares and Warrants. The Company agrees that, subject to the limitations
described herein, LFC may assign its right to purchase up to $1,100,000 of
Shares and Warrants to up to four other investors, provided that each such
other investor (i) is an "accredited investor" within the meaning of
Regulation D promulgated pursuant to the Securities Act of 1933, as amended
(the "Securities Act"), (ii) executes and delivers to the Company a
subscription agreement substantially in the same form as this Subscription
Agreement, and (iii) delivers to the Company the aggregate purchase price
for the Shares and Warrants purchased by such other investor.
Notwithstanding LFC's right to permit other investors to participate in the
purchase of the Shares and Warrants, LFC hereby irrevocably commits to
purchase on or before November 20, 1998, the additional $1,100,000 of Shares
and Warrants to the extent not purchased by such other investors as provided
herein.
3. ADDITIONAL TERMS OF PURCHASE.
----------------------------
(a) Except as provided herein, each Warrant shall entitle the holder to
purchase one Warrant Share at an exercise price of $2.25 per share, at any
time on or before the second anniversary of the closing date.
Notwithstanding the foregoing, the Warrants may be exercised only if the
Company obtains shareholder approval to increase its
authorized shares of Common Stock (in the manner described in the
Company's recent proxy statement), failing which approval the Warrants shall
not be exercisable. Subject to the specific terms described herein, the
Warrants shall be evidenced by a Warrant Agreement in form similar to that
delivered to the purchasers in the Company's July 24, 1998 private
placement, except that the Warrant Agreement shall contain customary anti-
dilution provisions for stock splits, reverse stock splits and stock
dividends and shall contain a net cashless exercise provision permitting the
holder to pay the exercise price using shares of Common Stock otherwise
issuable upon exercise of the Warrants evidenced by the Warrant Agreement .
(b) The Company agrees to uses its best efforts to register the Shares and
the Warrant Shares for resale under the Securities Act by the holders
thereof on or before the first anniversary of the closing date. If the
Company files a Form S-3 registration statement under the Securities Act
covering the resale of other shares of Common Stock of the Company on or
after the date of the increase in the Company's authorized shares, then the
Company shall include in such registration statement the Shares and the
Warrant Shares for resale by the holders thereof.
(c) LFC agrees to enter into a "lock-up agreement" pursuant to which LFC
will be prohibited from selling any Shares or Warrant Shares prior to
January 1, 2000. Any other investor purchasing Shares and Warrants shall
enter into a "lock-up agreement" pursuant to which such investor will be
prohibited from selling any Shares or Warrant Shares prior to the first
anniversary of the closing date.
(d) LFC agrees to enter into an agreement with the Company extending its
consulting agreement with the Company to January 1, 2000, in consideration
for the Company's issuance of 200,000 shares of Common Stock (such issuance
being subject to the increase in the Company's authorized shares). LFC
agrees that the lock-up on its original consulting agreement shares and the
additional consulting compensation shares shall be extended to January 1,
2000.
4. CERTAIN INVESTMENT RISKS. LFC acknowledges that an investment in the
-------------------------
Company involves a high degree of risk which may result in the loss of the
entire amount of its investment. LFC acknowledges that there are numerous
risks associated with an investment in the Company, including, but not
limited to, those set forth in the Company's filings with the Securities and
Exchange Commission during the last 12 months (the "SEC Filings"). LFC
acknowledges that LFC has had full opportunity to review the Company's SEC
Filings, including, but not limited to, the Company's 10-K filed September
28, 1998, the Company's definitive proxy statement filed October 14, 1998
and the Company's Form S-3 Registration Statement filed November 6, 1998,
and LFC has reviewed the Company's quarterly earnings release for September
30, 1998. Without limiting the foregoing, LFC acknowledges that the Company
is not currently in compliance with the Nasdaq National Market net tangible
assets requirement and LFC acknowledges receipt of a copy of Nasdaq's letter
to the Company, dated November 4, 1998, notifying the Company of such non-
compliance. LFC further acknowledges that the issuance of the Shares
hereunder will require substantially all remaining authorized, but unissued
shares of Common Stock, and
there can be no assurance that the Company will receive requisite
shareholder approval to increase its authorized shares.
5. INVESTOR REPRESENTATIONS AND WARRANTIES. LFC represents and warrants to the
---------------------------------------
Company that:
(a) The undersigned is an "accredited investor" within the meaning of
Regulation D promulgated pursuant to the Securities Act (insofar as LFC is a
Company, not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000). The undersigned has such
knowledge and experience in financial and business matters that the undersigned
is capable of evaluating the merits and risks of an investment in the Company.
The undersigned has made other investments and, by reason of its business and
financial experience, and skill in investments, the undersigned has the capacity
to protect its own interest in investments of this nature. The undersigned has
carefully evaluated its financial resources and investment position, and the
risks associated with this investment and acknowledges that it is able to bear
the economic risks of this investment. The undersigned represents and warrants
that the investment being made does not exceed 20% of its net worth.
(b) All documents, records and books pertaining to the undersigned's
proposed undersigned and its advisors. The undersigned has had an opportunity to
ask questions of and receive satisfactory answers from the Company concerning
the Company and its business and the terms and conditions of an investment in
the Company, and all such questions have been answered to the undersigned's full
satisfaction.
(c) The undersigned is not acting on the basis of any promotional sales
materials, or representations and warranties by any person or contained in any
document, except for this document and the SEC Filings and any other documents
or information furnished by the Company upon request by the undersigned. The
undersigned has had full opportunity to be represented by its own legal and tax
counsel.
(d) The securities for which the undersigned is subscribing will be
acquired for its own account for investment purposes only and not with a view
to, or for resale in connection with, any distribution of securities within the
meaning of the Securities Act, and the undersigned does not now have any reason
to anticipate any change in circumstances or other particular occasion or event
which would cause the undersigned to sell or transfer such securities.
(e) The address and Social Security number (or, if a Company, partnership
or other form of business, the federal employer identification number) set forth
herein are true and correct. The undersigned is presently a bona fide resident
of the state set forth on the signature page hereof and has no present intention
of becoming a resident of any other state or jurisdiction. If a Company,
partnership, trust or other form of business, the undersigned represents and
warrants that its principal place of business is
within such state. The securities subscribed for have been offered and will be
purchased in such state.
(f) The undersigned understands that the undersigned must bear the economic
risk of an investment in the Shares and Warrant Shares for an indefinite period
of time because neither the Shares nor the Warrant Shares have been registered
under any securities laws and therefore cannot be sold without registration
under applicable securities laws or an exemption from such registration is
available.
(g) The execution and delivery of this Subscription Agreement and the
purchase of the securities of the Company hereunder is within the undersigned's
power and authority, and have been duly authorized by all necessary action.
Assuming due execution and delivery by the Company, this Subscription Agreement
constitutes a valid and binding obligation, enforceable against the undersigned.
(h) The information provided to the Company herein is true and correct in
all respects as of the date hereof. The undersigned agrees to notify the Company
immediately if any of the statements made herein shall become untrue.
6. RESTRICTIONS ON TRANSFER. The undersigned understands that it
------------------------
must bear the economic risk of the purchase of the Shares and Warrant Shares for
an indefinite period of time, because (a) the securities have not been
registered under the Securities Act or applicable state securities laws; (b) the
Shares and Warrant Shares may therefore not be sold, transferred, pledged or
otherwise disposed of unless the shares are subsequently so registered or, in
the opinion of counsel for or satisfactory to the Company, registration under
the Securities Act or any applicable state securities laws is not required; and
(c) the Company is under no obligation to perfect any exemption for resale of
the Common Stock. The Shares, the Warrants and the Warrant Shares will bear
appropriate legends setting forth such restrictions on transfer.
7. GENERAL. This Agreement sets forth the entire understanding
-------
between the parties hereto concerning the subject matter contained herein.
Provisions of this Agreement may be amended or waived only by written instrument
executed by the party against whom enforcement is sought. This Agreement shall
be binding upon the parties and the respective successors and assigns. The
parties agree to execute such additional documents and take such additional
actions as may be reasonably necessary to give effect to the purposes and intent
of this Agreement. This Agreement may be executed in one or more counterparts,
any of which shall be deemed to be an original, all of which taken together
shall constitute one and the same instrument. In the event any provision of this
Agreement is held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions shall
not be affected thereby. This Agreement shall be governed by the laws of the
State of Texas without regard to conflicts of law rules.
THE SECURITIES SUBSCRIBED FOR HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES ACT AND MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF ABSENT SUCH REGISTRATION OR AN
EXEMPTION THEREFROM.
THIS SIGNATURE PAGE SHOULD BE DULY EXECUTED BY THE PURCHASER AND THE ENTIRE
EXECUTED SUBSCRIPTION AGREEMENT SHOULD BE DELIVERED TO DATA RACE, INC., ATTN:
PRESIDENT, AT 12400 NETWORK BOULEVARD, SAN ANTONIO, TEXAS 78216.
================================================================================
The undersigned hereby irrevocably subscribes for 977,778 Shares and
977,778 Warrants (as defined in the Subscription Agreement), at an aggregate
price of $2,200,000.
The undersigned represents that the undersigned has read the above
Subscription Agreement and the representations therein made by me are true and
correct.
IN WITNESS WHEREOF, this Subscription Agreement has been executed by the
undersigned as of November 15, 1998.
LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
By: /s/ John Liviakis
___________________________
Name: John Liviakis
------------------------
Title: President
_______________________
Address: 2420 K Street, Suite 200
Sacramento, California 95816
SUBSCRIPTION ACCEPTED:
DATA RACE, INC.
By: /s/ Dr. W. B. Barker
------------------------------
Dr. W.B. Barker, President and
Chief Executive Officer
Date: November 15, 1998
DATA RACE, INC.
SUBSCRIPTION AGREEMENT
----------------------
CONFIDENTIAL
- ------------
DATA RACE, Inc.
12400 Network Boulevard
San Antonio, Texas 78249
ATTN: President
1. SUBSCRIPTION. The undersigned investor ("Investor") hereby agrees to
------------
purchase 355,555 shares (the "Shares") of common stock, no par value
("Common Stock"), of DATA RACE, Inc., a Texas corporation (the "Company"),
and 355,555 common stock purchase warrants (the "Warrants") to purchase an
aggregate of 355,555 shares of Common Stock (the "Warrant Shares"), on the
terms and conditions described herein. The purchase price for one Share and
one Warrant is $2.25. Investor shall, upon execution hereof, forward payment
to the Company for the Shares and Warrants in immediately available funds.
2. ADDITIONAL TERMS OF PURCHASE.
----------------------------
(a) Except as provided herein, each Warrant shall entitle the holder to
purchase one Warrant Share at an exercise price of $2.25 per share, at any
time on or before the second anniversary of the closing date.
Notwithstanding the foregoing, the Warrants may be exercised only if the
Company obtains shareholder approval to increase its authorized shares of
Common Stock (in the manner described in the Company's recent proxy
statement), failing which approval the Warrants shall not be exercisable.
Subject to the specific terms described herein, the Warrants shall be
evidenced by a Warrant Agreement in form similar to that delivered to the
purchasers in the Company's July 24, 1998 private placement, except that the
Warrant Agreement shall contain customary anti-dilution provisions for stock
splits, reverse stock splits and stock dividends and shall contain a net
cashless exercise provision permitting the holder to pay the exercise price
using shares of Common Stock otherwise issuable upon exercise of the
Warrants evidenced by the Warrant Agreement.
(b) The Company agrees to use its best efforts to register the Shares and
the Warrant Shares for resale under the Securities Act by the holders
thereof on or before the first anniversary of the closing date. If the
Company files a Form S-3 registration statement under the Securities Act
covering the resale of other shares of Common Stock of the Company on or
after the date of the increase in the Company's authorized shares, then the
Company shall include in such registration statement the Shares and the
Warrant Shares for resale by the holders thereof.
(c) Investor agrees to enter into a "lock-up agreement" pursuant to which
Investor will be prohibited from selling any Shares or Warrant Shares prior
to the first anniversary of the closing date.
3. CERTAIN INVESTMENT RISKS. Investor acknowledges that an investment in the
-------------------------
Company involves a high degree of risk which may result in the loss of the
entire amount of its investment. Investor acknowledges that there are
numerous risks associated with an investment in the Company, including, but
not limited to, those set forth in the Company's filings with the
Securities and Exchange Commission during the last 12 months (the "SEC
Filings"). Investor acknowledges that it has had full opportunity to review
the Company's SEC Filings, including, but not limited to, the Company's 10-
K filed September 28, 1998, the Company's definitive proxy statement filed
October 14, 1998 and the Company's Form S-3 Registration Statement filed
November 6, 1998, and Investor has reviewed the Company's quarterly
earnings release for the quarter ended September 30, 1998. Without limiting
the foregoing, Investor acknowledges that the Company is not currently in
compliance with the Nasdaq National Market net tangible assets requirement
and Investor acknowledges receipt of a copy of Nasdaq's letter to the
Company, dated November 4, 1998, notifying the Company of such non-
compliance. Investor further acknowledges that the issuance of the Shares
hereunder will require substantially all remaining authorized, but unissued
shares of Common Stock, and there can be no assurance that the Company will
receive requisite shareholder approval to increase its authorized shares.
4. INVESTOR REPRESENTATIONS AND WARRANTIES. Investor represents and warrants
---------------------------------------
to the Company that:
(a) The undersigned is an "accredited investor" within the meaning of
Regulation D promulgated pursuant to the Securities Act. If Investor is a
corporation, Investor has not been formed for the specific purpose of
acquiring the securities offered and Investor has total assets in excess of
$5,000,000. If Investor is an individual, Investor's net worth (or joint
net worth with Investor's spouse) exceeds $1,000,000, or Investor had
income in excess of $200,000 in each of the two most recent years (or joint
income with Investor's spouse in excess of $300,000 in each of those years)
and Investor has a reasonable expectation of reaching the same income level
in the current year. The undersigned has such knowledge and experience in
financial and business matters that the undersigned is capable of
evaluating the merits and risks of an investment in the Company. The
undersigned has made other investments and, by reason of its business and
financial experience, and skill in investments, the undersigned has the
capacity to protect its own interest in investments of this nature. The
undersigned has carefully evaluated its financial resources and investment
position, and the risks associated with this investment and acknowledges
that it is able to bear the economic risks of this investment. The
undersigned represents and warrants that the investment being made does not
exceed 20% of its net worth.
(b) All documents, records and books pertaining to the undersigned's
proposed investment, which have been requested, have been made available to
undersigned and its advisors. The undersigned has had an opportunity to ask
questions of and receive satisfactory answers from the Company concerning the
Company and its business and the terms and conditions of an investment in the
Company, and all such questions have been answered to the undersigned's full
satisfaction.
(c) The undersigned is not acting on the basis of any promotional sales
materials, or representations and warranties by any person or contained in any
document, except for this document and the SEC Filings and any other documents
or information furnished by the Company upon request by the undersigned. The
undersigned has had full opportunity to be represented by its own legal and tax
counsel.
(d) The securities for which the undersigned is subscribing will be
acquired for its own account for investment purposes only and not with a view
to, or for resale in connection with, any distribution of securities within the
meaning of the Securities Act, and the undersigned does not now have any reason
to anticipate any change in circumstances or other particular occasion or event
which would cause the undersigned to sell or transfer such securities.
(e) The address and Social Security number (or, if a Company, partnership
or other form of business, the federal employer identification number) set forth
herein are true and correct. The undersigned is presently a bona fide resident
of the state set forth on the signature page hereof and has no present intention
of becoming a resident of any other state or jurisdiction. If a Company,
partnership, trust or other form of business, the undersigned represents and
warrants that its principal place of business is within such state. The
securities subscribed for have been offered and will be purchased in such state.
(f) The undersigned understands that the undersigned must bear the
economic risk of an investment in the Shares and Warrant Shares for an
indefinite period of time because neither the Shares nor the Warrant Shares have
been registered under any securities laws and therefore cannot be sold without
registration under applicable securities laws or an exemption from such
registration is available.
(g) The execution and delivery of this Subscription Agreement and the
purchase of the securities of the Company hereunder is within the undersigned's
power and authority, and have been duly authorized by all necessary action.
Assuming due execution and delivery by the Company, this Subscription Agreement
constitutes a valid and binding obligation, enforceable against the undersigned.
(h) The information provided to the Company herein is true and correct
in all respects as of the date hereof. The undersigned agrees to notify the
Company immediately if any of the statements made herein shall become untrue.
The undersigned understands that the Company is relying upon these
representations and warranties in completing this investment.
5. RESTRICTIONS ON TRANSFER. The undersigned understands that it must
------------------------
bear the economic risk of the purchase of the Shares and Warrant Shares for an
indefinite period of time, because (a) the securities have not been registered
under the Securities Act or applicable state securities laws; (b) the Shares and
Warrant Shares may therefore not be sold, transferred, pledged or otherwise
disposed of unless the shares are subsequently so registered or, in the opinion
of counsel for or satisfactory to the Company, registration under the Securities
Act or any applicable state securities laws is not required; and (c) the Company
is under no obligation to perfect any exemption for resale of the Common Stock.
The Shares, the Warrants and the Warrant Shares will bear appropriate legends
setting forth such restrictions on transfer.
6. GENERAL. This Agreement sets forth the entire understanding between
-------
the parties hereto concerning the subject matter contained herein. Provisions of
this Agreement may be amended or waived only by written instrument executed by
the party against whom enforcement is sought. This Agreement shall be binding
upon the parties and the respective successors and assigns. The parties agree to
execute such additional documents and take such additional actions as may be
reasonably necessary to give effect to the purposes and intent of this
Agreement. This Agreement may be executed in one or more counterparts, any of
which shall be deemed to be an original, all of which taken together shall
constitute one and the same instrument. In the event any provision of this
Agreement is held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions shall
not be affected thereby. This Agreement shall be governed by the laws of the
State of Texas without regard to conflicts of law rules.
[signature page follows]
THE SECURITIES SUBSCRIBED FOR HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES ACT AND MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF ABSENT SUCH REGISTRATION OR AN
EXEMPTION THEREFROM.
THIS SIGNATURE PAGE SHOULD BE DULY EXECUTED BY THE PURCHASER AND THE ENTIRE
EXECUTED SUBSCRIPTION AGREEMENT SHOULD BE DELIVERED TO DATA RACE, INC., ATTN:
PRESIDENT, AT 12400 NETWORK BOULEVARD, SAN ANTONIO, TEXAS 78216.
================================================================================
The undersigned hereby irrevocably subscribes for 355,555 Shares and
355,555 Warrants (as defined in the Subscription Agreement), at an aggregate
price of $800,000.
The undersigned represents that the undersigned has read the above
Subscription Agreement and the representations therein made by the undersigned
are true and correct.
IN WITNESS WHEREOF, this Subscription Agreement has been executed by the
undersigned as of November 16, 1998.
/s/ Robert S. London
-------------------------------
ROBERT S. LONDON
Address:
c/o Cruttenden Roth
809 Presidio Avenue, Suite B
Santa Barbara, CA 93101
(800) 873-4886 (phone)
(805) 966-9302 (fax)
SUBSCRIPTION ACCEPTED:
DATA RACE, INC.
By: /s/ Dr. W. B. Barker
----------------------------------
Dr. W.B. Barker, President and
Chief Executive Officer
Date: November 16, 1998
DATA RACE, INC.
SUBSCRIPTION AGREEMENT
----------------------
CONFIDENTIAL
- ------------
DATA RACE, Inc.
12400 Network Boulevard
San Antonio, Texas 78249
ATTN: President
1. SUBSCRIPTION. The undersigned investor ("Investor") hereby agrees to
------------
purchase 44,444 shares (the "Shares") of common stock, no par value
("Common Stock"), of DATA RACE, Inc., a Texas corporation (the "Company"),
and 44,444 common stock purchase warrants (the "Warrants") to purchase an
aggregate of 44,444 shares of Common Stock (the "Warrant Shares"), on the
terms and conditions described herein. The purchase price for one Share and
one Warrant is $2.25. Investor shall, upon execution hereof, forward
payment to the Company for the Shares and Warrants in immediately available
funds.
2. ADDITIONAL TERMS OF PURCHASE.
----------------------------
(a) Except as provided herein, each Warrant shall entitle the holder to
purchase one Warrant Share at an exercise price of $2.25 per share, at any
time on or before the second anniversary of the closing date.
Notwithstanding the foregoing, the Warrants may be exercised only if the
Company obtains shareholder approval to increase its authorized shares of
Common Stock (in the manner described in the Company's recent proxy
statement), failing which approval the Warrants shall not be exercisable.
Subject to the specific terms described herein, the Warrants shall be
evidenced by a Warrant Agreement in form similar to that delivered to the
purchasers in the Company's July 24, 1998 private placement, except that
the Warrant Agreement shall contain customary anti-dilution provisions for
stock splits, reverse stock splits and stock dividends and shall contain a
net cashless exercise provision permitting the holder to pay the exercise
price using shares of Common Stock otherwise issuable upon exercise of the
Warrants evidenced by the Warrant Agreement.
(b) The Company agrees to use its best efforts to register the Shares and
the Warrant Shares for resale under the Securities Act by the holders
thereof on or before the first anniversary of the closing date. If the
Company files a Form S-3 registration statement under the Securities Act
covering the resale of other shares of Common Stock of the Company on or
after the date of the increase in the Company's authorized shares, then the
Company shall include in such registration statement the Shares and the
Warrant Shares for resale by the holders thereof.
(c) Investor agrees to enter into a "lock-up agreement" pursuant to which
Investor will be prohibited from selling any Shares or Warrant Shares prior
to the first anniversary of the closing date.
3. CERTAIN INVESTMENT RISKS. Investor acknowledges that an investment in the
-------------------------
Company involves a high degree of risk which may result in the loss of the
entire amount of its investment. Investor acknowledges that there are
numerous risks associated with an investment in the Company, including, but
not limited to, those set forth in the Company's filings with the
Securities and Exchange Commission during the last 12 months (the "SEC
Filings"). Investor acknowledges that it has had full opportunity to review
the Company's SEC Filings, including, but not limited to, the Company's 10-
K filed September 28, 1998, the Company's definitive proxy statement filed
October 14, 1998 and the Company's Form S-3 Registration Statement filed
November 6, 1998, and Investor has reviewed the Company's quarterly
earnings release for the quarter ended September 30, 1998. Without limiting
the foregoing, Investor acknowledges that the Company is not currently in
compliance with the Nasdaq National Market net tangible assets requirement
and Investor acknowledges receipt of a copy of Nasdaq's letter to the
Company, dated November 4, 1998, notifying the Company of such non-
compliance. Investor further acknowledges that the issuance of the Shares
hereunder will require substantially all remaining authorized, but unissued
shares of Common Stock, and there can be no assurance that the Company will
receive requisite shareholder approval to increase its authorized shares.
4. INVESTOR REPRESENTATIONS AND WARRANTIES. Investor represents and warrants
---------------------------------------
to the Company that:
(a) The undersigned is an "accredited investor" within the meaning of
Regulation D promulgated pursuant to the Securities Act. If Investor is a
corporation, Investor has not been formed for the specific purpose of
acquiring the securities offered and Investor has total assets in excess of
$5,000,000. If Investor is an individual, Investor's net worth (or joint
net worth with Investor's spouse) exceeds $1,000,000, or Investor had
income in excess of $200,000 in each of the two most recent years (or joint
income with Investor's spouse in excess of $300,000 in each of those years)
and Investor has a reasonable expectation of reaching the same income level
in the current year. The undersigned has such knowledge and experience in
financial and business matters that the undersigned is capable of
evaluating the merits and risks of an investment in the Company. The
undersigned has made other investments and, by reason of its business and
financial experience, and skill in investments, the undersigned has the
capacity to protect its own interest in investments of this nature. The
undersigned has carefully evaluated its financial resources and investment
position, and the risks associated with this investment and acknowledges
that it is able to bear the economic risks of this investment. The
undersigned represents and warrants that the investment being made does not
exceed 20% of its net worth.
(b) All documents, records and books pertaining to the undersigned's
proposed investment, which have been requested, have been made available to
undersigned and its advisors. The undersigned has had an opportunity to ask
questions of and receive satisfactory answers from the Company concerning the
Company and its business and the terms and conditions of an investment in the
Company, and all such questions have been answered to the undersigned's full
satisfaction.
(c) The undersigned is not acting on the basis of any promotional sales
materials, or representations and warranties by any person or contained in any
document, except for this document and the SEC Filings and any other documents
or information furnished by the Company upon request by the undersigned. The
undersigned has had full opportunity to be represented by its own legal and tax
counsel.
(d) The securities for which the undersigned is subscribing will be
acquired for its own account for investment purposes only and not with a view
to, or for resale in connection with, any distribution of securities within the
meaning of the Securities Act, and the undersigned does not now have any reason
to anticipate any change in circumstances or other particular occasion or event
which would cause the undersigned to sell or transfer such securities.
(e) The address and Social Security number (or, if a Company, partnership
or other form of business, the federal employer identification number) set forth
herein are true and correct. The undersigned is presently a bona fide resident
of the state set forth on the signature page hereof and has no present intention
of becoming a resident of any other state or jurisdiction. If a Company,
partnership, trust or other form of business, the undersigned represents and
warrants that its principal place of business is within such state. The
securities subscribed for have been offered and will be purchased in such state.
(f) The undersigned understands that the undersigned must bear the
economic risk of an investment in the Shares and Warrant Shares for an
indefinite period of time because neither the Shares nor the Warrant Shares have
been registered under any securities laws and therefore cannot be sold without
registration under applicable securities laws or an exemption from such
registration is available.
(g) The execution and delivery of this Subscription Agreement and the
purchase of the securities of the Company hereunder is within the undersigned's
power and authority, and have been duly authorized by all necessary action.
Assuming due execution and delivery by the Company, this Subscription Agreement
constitutes a valid and binding obligation, enforceable against the undersigned.
(h) The information provided to the Company herein is true and correct
in all respects as of the date hereof. The undersigned agrees to notify the
Company immediately if any of the statements made herein shall become untrue.
The undersigned understands that the Company is relying upon these
representations and warranties in completing this investment.
5. RESTRICTIONS ON TRANSFER. The undersigned understands that it must
------------------------
bear the economic risk of the purchase of the Shares and Warrant Shares for an
indefinite period of time, because (a) the securities have not been registered
under the Securities Act or applicable state securities laws; (b) the Shares and
Warrant Shares may therefore not be sold, transferred, pledged or otherwise
disposed of unless the shares are subsequently so registered or, in the opinion
of counsel for or satisfactory to the Company, registration under the Securities
Act or any applicable state securities laws is not required; and (c) the Company
is under no obligation to perfect any exemption for resale of the Common Stock.
The Shares, the Warrants and the Warrant Shares will bear appropriate legends
setting forth such restrictions on transfer.
6. GENERAL. This Agreement sets forth the entire understanding between
-------
the parties hereto concerning the subject matter contained herein. Provisions of
this Agreement may be amended or waived only by written instrument executed by
the party against whom enforcement is sought. This Agreement shall be binding
upon the parties and the respective successors and assigns. The parties agree to
execute such additional documents and take such additional actions as may be
reasonably necessary to give effect to the purposes and intent of this
Agreement. This Agreement may be executed in one or more counterparts, any of
which shall be deemed to be an original, all of which taken together shall
constitute one and the same instrument. In the event any provision of this
Agreement is held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions shall
not be affected thereby. This Agreement shall be governed by the laws of the
State of Texas without regard to conflicts of law rules.
[signature page follows]
THE SECURITIES SUBSCRIBED FOR HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES ACT AND MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF ABSENT SUCH REGISTRATION OR AN
EXEMPTION THEREFROM.
THIS SIGNATURE PAGE SHOULD BE DULY EXECUTED BY THE PURCHASER AND THE ENTIRE
EXECUTED SUBSCRIPTION AGREEMENT SHOULD BE DELIVERED TO DATA RACE, INC., ATTN:
PRESIDENT, AT 12400 NETWORK BOULEVARD, SAN ANTONIO, TEXAS 78216.
================================================================================
The undersigned hereby irrevocably subscribes for 44,444 Shares and 44,444
Warrants (as defined in the Subscription Agreement), at an aggregate price of
$100,000.
The undersigned represents that the undersigned has read the above
Subscription Agreement and the representations therein made by the undersigned
are true and correct.
IN WITNESS WHEREOF, this Subscription Agreement has been executed by the
undersigned as of November 17, 1998.
/s/ Anthony Altavilla
----------------------------------
ANTHONY ALTAVILLA
Address:
c/o Liviakis Financial Communications, Inc.
2420 "K" Street, Suite 220
Sacramento, CA 95816
Tel: (916) 448-6084
Fax: (916) 448-6089
SUBSCRIPTION ACCEPTED:
DATA RACE, INC.
By: Dr. W. B. Barker
------------------------------
Dr. W.B. Barker, President and
Chief Executive Officer
Date: November 17, 1998
DATA RACE, INC.
SUBSCRIPTION AGREEMENT
----------------------
CONFIDENTIAL
- ------------
DATA RACE, Inc.
12400 Network Boulevard
San Antonio, Texas 78249
ATTN: President
1. SUBSCRIPTION. The undersigned investor ("Investor") hereby agrees to
------------
purchase 44,444 shares (the "Shares") of common stock, no par value
("Common Stock"), of DATA RACE, Inc., a Texas corporation (the "Company"),
and 44,444 common stock purchase warrants (the "Warrants") to purchase an
aggregate of 44,444 shares of Common Stock (the "Warrant Shares"), on the
terms and conditions described herein. The purchase price for one Share and
one Warrant is $2.25. Investor shall, upon execution hereof, forward
payment to the Company for the Shares and Warrants in immediately available
funds.
2. ADDITIONAL TERMS OF PURCHASE.
----------------------------
(a) Except as provided herein, each Warrant shall entitle the holder to
purchase one Warrant Share at an exercise price of $2.25 per share, at any
time on or before the second anniversary of the closing date.
Notwithstanding the foregoing, the Warrants may be exercised only if the
Company obtains shareholder approval to increase its authorized shares of
Common Stock (in the manner described in the Company's recent proxy
statement), failing which approval the Warrants shall not be exercisable.
Subject to the specific terms described herein, the Warrants shall be
evidenced by a Warrant Agreement in form similar to that delivered to the
purchasers in the Company's July 24, 1998 private placement, except that
the Warrant Agreement shall contain customary anti-dilution provisions for
stock splits, reverse stock splits and stock dividends and shall contain a
net cashless exercise provision permitting the holder to pay the exercise
price using shares of Common Stock otherwise issuable upon exercise of the
Warrants evidenced by the Warrant Agreement.
(b) The Company agrees to use its best efforts to register the Shares and
the Warrant Shares for resale under the Securities Act by the holders
thereof on or before the first anniversary of the closing date. If the
Company files a Form S-3 registration statement under the Securities Act
covering the resale of other shares of Common Stock of the Company on or
after the date of the increase in the Company's authorized shares, then the
Company shall include in such registration statement the Shares and the
Warrant Shares for resale by the holders thereof.
(c) Investor agrees to enter into a "lock-up agreement" pursuant to which
Investor will be prohibited from selling any Shares or Warrant Shares prior
to the first anniversary of the closing date.
3. CERTAIN INVESTMENT RISKS. Investor acknowledges that an investment in the
-------------------------
Company involves a high degree of risk which may result in the loss of the
entire amount of its investment. Investor acknowledges that there are
numerous risks associated with an investment in the Company, including, but
not limited to, those set forth in the Company's filings with the
Securities and Exchange Commission during the last 12 months (the "SEC
Filings"). Investor acknowledges that it has had full opportunity to review
the Company's SEC Filings, including, but not limited to, the Company's 10-
K filed September 28, 1998, the Company's definitive proxy statement filed
October 14, 1998 and the Company's Form S-3 Registration Statement filed
November 6, 1998, and Investor has reviewed the Company's quarterly
earnings release for the quarter ended September 30, 1998. Without limiting
the foregoing, Investor acknowledges that the Company is not currently in
compliance with the Nasdaq National Market net tangible assets requirement
and Investor acknowledges receipt of a copy of Nasdaq's letter to the
Company, dated November 4, 1998, notifying the Company of such non-
compliance. Investor further acknowledges that the issuance of the Shares
hereunder will require substantially all remaining authorized, but unissued
shares of Common Stock, and there can be no assurance that the Company will
receive requisite shareholder approval to increase its authorized shares.
4. INVESTOR REPRESENTATIONS AND WARRANTIES. Investor represents and warrants
---------------------------------------
to the Company that:
(a) The undersigned is an "accredited investor" within the meaning of
Regulation D promulgated pursuant to the Securities Act. If Investor is a
corporation, Investor has not been formed for the specific purpose of acquiring
the securities offered and Investor has total assets in excess of $5,000,000. If
Investor is an individual, Investor's net worth (or joint net worth with
Investor's spouse) exceeds $1,000,000, or Investor had income in excess of
$200,000 in each of the two most recent years (or joint income with Investor's
spouse in excess of $300,000 in each of those years) and Investor has a
reasonable expectation of reaching the same income level in the current year.
The undersigned has such knowledge and experience in financial and business
matters that the undersigned is capable of evaluating the merits and risks of an
investment in the Company. The undersigned has made other investments and, by
reason of its business and financial experience, and skill in investments, the
undersigned has the capacity to protect its own interest in investments of this
nature. The undersigned has carefully evaluated its financial resources and
investment position, and the risks associated with this investment and
acknowledges that it is able to bear the economic risks of this investment. The
undersigned represents and warrants that the investment being made does not
exceed 20% of its net worth.
(b) All documents, records and books pertaining to the undersigned's
proposed investment, which have been requested, have been made available to
undersigned and its advisors. The undersigned has had an opportunity to ask
questions of and receive satisfactory answers from the Company concerning the
Company and its business and the terms and conditions of an investment in the
Company, and all such questions have been answered to the undersigned's full
satisfaction.
(c) The undersigned is not acting on the basis of any promotional sales
materials, or representations and warranties by any person or contained in any
document, except for this document and the SEC Filings and any other documents
or information furnished by the Company upon request by the undersigned. The
undersigned has had full opportunity to be represented by its own legal and tax
counsel.
(d) The securities for which the undersigned is subscribing will be
acquired for its own account for investment purposes only and not with a view
to, or for resale in connection with, any distribution of securities within the
meaning of the Securities Act, and the undersigned does not now have any reason
to anticipate any change in circumstances or other particular occasion or event
which would cause the undersigned to sell or transfer such securities.
(e) The address and Social Security number (or, if a Company, partnership
or other form of business, the federal employer identification number) set forth
herein are true and correct. The undersigned is presently a bona fide resident
of the state set forth on the signature page hereof and has no present intention
of becoming a resident of any other state or jurisdiction. If a Company,
partnership, trust or other form of business, the undersigned represents and
warrants that its principal place of business is within such state. The
securities subscribed for have been offered and will be purchased in such state.
(f) The undersigned understands that the undersigned must bear the
economic risk of an investment in the Shares and Warrant Shares for an
indefinite period of time because neither the Shares nor the Warrant Shares have
been registered under any securities laws and therefore cannot be sold without
registration under applicable securities laws or an exemption from such
registration is available.
(g) The execution and delivery of this Subscription Agreement and the
purchase of the securities of the Company hereunder is within the undersigned's
power and authority, and have been duly authorized by all necessary action.
Assuming due execution and delivery by the Company, this Subscription Agreement
constitutes a valid and binding obligation, enforceable against the undersigned.
(h) The information provided to the Company herein is true and correct in
all respects as of the date hereof. The undersigned agrees to notify the Company
immediately if any of the statements made herein shall become untrue. The
undersigned understands that the Company is relying upon these representations
and warranties in completing this investment.
5. RESTRICTIONS ON TRANSFER. The undersigned understands that it must
------------------------
bear the economic risk of the purchase of the Shares and Warrant Shares for an
indefinite period of time, because (a) the securities have not been registered
under the Securities Act or applicable state securities laws; (b) the Shares and
Warrant Shares may therefore not be sold, transferred, pledged or otherwise
disposed of unless the shares are subsequently so registered or, in the opinion
of counsel for or satisfactory to the Company, registration under the Securities
Act or any applicable state securities laws is not required; and (c) the Company
is under no obligation to perfect any exemption for resale of the Common Stock.
The Shares, the Warrants and the Warrant Shares will bear appropriate legends
setting forth such restrictions on transfer.
6. GENERAL. This Agreement sets forth the entire understanding between
-------
the parties hereto concerning the subject matter contained herein. Provisions of
this Agreement may be amended or waived only by written instrument executed by
the party against whom enforcement is sought. This Agreement shall be binding
upon the parties and the respective successors and assigns. The parties agree to
execute such additional documents and take such additional actions as may be
reasonably necessary to give effect to the purposes and intent of this
Agreement. This Agreement may be executed in one or more counterparts, any of
which shall be deemed to be an original, all of which taken together shall
constitute one and the same instrument. In the event any provision of this
Agreement is held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions shall
not be affected thereby. This Agreement shall be governed by the laws of the
State of Texas without regard to conflicts of law rules.
[signature page follows]
THE SECURITIES SUBSCRIBED FOR HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES ACT AND MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF ABSENT SUCH REGISTRATION OR AN
EXEMPTION THEREFROM.
THIS SIGNATURE PAGE SHOULD BE DULY EXECUTED BY THE PURCHASER AND THE ENTIRE
EXECUTED SUBSCRIPTION AGREEMENT SHOULD BE DELIVERED TO DATA RACE, INC., ATTN:
PRESIDENT, AT 12400 NETWORK BOULEVARD, SAN ANTONIO, TEXAS 78216.
================================================================================
The undersigned hereby irrevocably subscribes for 44,444 Shares and 44,444
Warrants (as defined in the Subscription Agreement), at an aggregate price of
$100,000.
The undersigned represents that the undersigned has read the above
Subscription Agreement and the representations therein made by the undersigned
are true and correct.
IN WITNESS WHEREOF, this Subscription Agreement has been executed by the
undersigned as of November 17, 1998.
/s/ Timothy D. Wilson, Sr.
-------------------------------------
TIMOTHY D. WILSON, SR.
Address:
6633 East 1600th Road
Martinsville, IL 62442
Tel: (217) 382-4229
Fax: (217) 382-4630
SUBSCRIPTION ACCEPTED:
DATA RACE, INC.
By: /s/ Dr. W. B. Barker
------------------------------
Dr. W.B. Barker, President and
Chief Executive Officer
Date: November 17, 1998
DATA RACE, INC.
SUBSCRIPTION AGREEMENT
----------------------
CONFIDENTIAL
- ------------
DATA RACE, Inc.
12400 Network Boulevard
San Antonio, Texas 78249
ATTN: President
1. SUBSCRIPTION. The undersigned investor ("Investor") hereby agrees to
------------
purchase 44,444 shares (the "Shares") of common stock, no par value
("Common Stock"), of DATA RACE, Inc., a Texas corporation (the "Company"),
and 44,444 common stock purchase warrants (the "Warrants") to purchase an
aggregate of 44,444 shares of Common Stock (the "Warrant Shares"), on the
terms and conditions described herein. The purchase price for one Share and
one Warrant is $2.25. Investor shall, upon execution hereof, forward
payment to the Company for the Shares and Warrants in immediately available
funds.
2. ADDITIONAL TERMS OF PURCHASE.
----------------------------
(a) Except as provided herein, each Warrant shall entitle the holder to
purchase one Warrant Share at an exercise price of $2.25 per share, at any
time on or before the second anniversary of the closing date.
Notwithstanding the foregoing, the Warrants may be exercised only if the
Company obtains shareholder approval to increase its authorized shares of
Common Stock (in the manner described in the Company's recent proxy
statement), failing which approval the Warrants shall not be exercisable.
Subject to the specific terms described herein, the Warrants shall be
evidenced by a Warrant Agreement in form similar to that delivered to the
purchasers in the Company's July 24, 1998 private placement, except that
the Warrant Agreement shall contain customary anti-dilution provisions for
stock splits, reverse stock splits and stock dividends and shall contain a
net cashless exercise provision permitting the holder to pay the exercise
price using shares of Common Stock otherwise issuable upon exercise of the
Warrants evidenced by the Warrant Agreement.
(b) The Company agrees to use its best efforts to register the Shares and
the Warrant Shares for resale under the Securities Act by the holders
thereof on or before the first anniversary of the closing date. If the
Company files a Form S-3 registration statement under the Securities Act
covering the resale of other shares of Common Stock of the Company on or
after the date of the increase in the Company's authorized shares, then the
Company shall include in such registration statement the Shares and the
Warrant Shares for resale by the holders thereof.
(c) Investor hereby agrees that Investor shall be prohibited from selling
any Shares or Warrant Shares prior to the first anniversary of the closing
date.
3. CERTAIN INVESTMENT RISKS. Investor acknowledges that an investment in the
-------------------------
Company involves a high degree of risk which may result in the loss of the
entire amount of its investment. Investor acknowledges that there are
numerous risks associated with an investment in the Company, including, but
not limited to, those set forth in the Company's filings with the
Securities and Exchange Commission during the last 12 months (the "SEC
Filings"). Investor acknowledges that it has had full opportunity to review
the Company's SEC Filings, including, but not limited to, the Company's 10-
K filed September 28, 1998, the Company's definitive proxy statement filed
October 14, 1998 and the Company's Form S-3 Registration Statement filed
November 6, 1998, and Investor has reviewed the Company's quarterly
earnings release for the quarter ended September 30, 1998. Without limiting
the foregoing, Investor acknowledges that the Company is not currently in
compliance with the Nasdaq National Market net tangible assets requirement
and Investor acknowledges receipt of a copy of Nasdaq's letter to the
Company, dated November 4, 1998, notifying the Company of such non-
compliance. Investor further acknowledges that the issuance of the Shares
hereunder will require substantially all remaining authorized, but unissued
shares of Common Stock, and there can be no assurance that the Company will
receive requisite shareholder approval to increase its authorized shares.
4. INVESTOR REPRESENTATIONS AND WARRANTIES. Investor represents and warrants
---------------------------------------
to the Company that:
(a) The undersigned is an "accredited investor" within the meaning of
Regulation D promulgated pursuant to the Securities Act. If Investor is a
corporation, Investor has not been formed for the specific purpose of
acquiring the securities offered and Investor has total assets in excess of
$5,000,000. If Investor is an individual, Investor's net worth (or joint
net worth with Investor's spouse) exceeds $1,000,000, or Investor had
income in excess of $200,000 in each of the two most recent years (or joint
income with Investor's spouse in excess of $300,000 in each of those years)
and Investor has a reasonable expectation of reaching the same income level
in the current year. The undersigned has such knowledge and experience in
financial and business matters that the undersigned is capable of
evaluating the merits and risks of an investment in the Company. The
undersigned has made other investments and, by reason of its business and
financial experience, and skill in investments, the undersigned has the
capacity to protect its own interest in investments of this nature. The
undersigned has carefully evaluated its financial resources and investment
position, and the risks associated with this investment and acknowledges
that it is able to bear the economic risks of this investment. The
undersigned represents and warrants that the investment being made does not
exceed 20% of its net worth.
(b) All documents, records and books pertaining to the undersigned's proposed
investment, which have been requested, have been made available to
undersigned and its advisors. The undersigned has had an opportunity to
ask questions of and receive
satisfactory answers from the Company concerning the Company and its
business and the terms and conditions of an investment in the Company, and
all such questions have been answered to the undersigned's full
satisfaction.
(c) The undersigned is not acting on the basis of any promotional sales
materials, or representations and warranties by any person or contained in
any document, except for this document and the SEC Filings and any other
documents or information furnished by the Company upon request by the
undersigned. The undersigned has had full opportunity to be represented by
its own legal and tax counsel.
(d) The securities for which the undersigned is subscribing will be acquired
for its own account for investment purposes only and not with a view to, or
for resale in connection with, any distribution of securities within the
meaning of the Securities Act, and the undersigned does not now have any
reason to anticipate any change in circumstances or other particular
occasion or event which would cause the undersigned to sell or transfer
such securities.
(e) The address and Social Security number (or, if a Company, partnership or
other form of business, the federal employer identification number) set
forth herein are true and correct. The undersigned is presently a bona
fide resident of the state set forth on the signature page hereof and has
no present intention of becoming a resident of any other state or
jurisdiction. If a Company, partnership, trust or other form of business,
the undersigned represents and warrants that its principal place of
business is within such state. The securities subscribed for have been
offered and will be purchased in such state.
(f) The undersigned understands that the undersigned must bear the economic
risk of an investment in the Shares and Warrant Shares for an indefinite
period of time because neither the Shares nor the Warrant Shares have been
registered under any securities laws and therefore cannot be sold without
registration under applicable securities laws or an exemption from such
registration is available.
(g) The execution and delivery of this Subscription Agreement and the purchase
of the securities of the Company hereunder is within the undersigned's
power and authority, and have been duly authorized by all necessary action.
Assuming due execution and delivery by the Company, this Subscription
Agreement constitutes a valid and binding obligation, enforceable against
the undersigned.
(h) The information provided to the Company herein is true and correct in all
respects as of the date hereof. The undersigned agrees to notify the
Company immediately if any of the statements made herein shall become
untrue. The undersigned understands that the Company is relying upon these
representations and warranties in completing this investment.
5. RESTRICTIONS ON TRANSFER. The undersigned understands that it must bear
------------------------
the economic risk of the purchase of the Shares and Warrant Shares for an
indefinite period of time, because (a) the securities have not been
registered under the Securities
Act or applicable state securities laws; (b) the Shares and Warrant Shares
may therefore not be sold, transferred, pledged or otherwise disposed of
unless the shares are subsequently so registered or, in the opinion of
counsel for or satisfactory to the Company, registration under the
Securities Act or any applicable state securities laws is not required; and
(c) the Company is under no obligation to perfect any exemption for resale
of the Common Stock. The Shares, the Warrants and the Warrant Shares will
bear appropriate legends setting forth such restrictions on transfer.
6. GENERAL. This Agreement sets forth the entire understanding between the
-------
parties hereto concerning the subject matter contained herein. Provisions
of this Agreement may be amended or waived only by written instrument
executed by the party against whom enforcement is sought. This Agreement
shall be binding upon the parties and the respective successors and
assigns. The parties agree to execute such additional documents and take
such additional actions as may be reasonably necessary to give effect to
the purposes and intent of this Agreement. This Agreement may be executed
in one or more counterparts, any of which shall be deemed to be an
original, all of which taken together shall constitute one and the same
instrument. In the event any provision of this Agreement is held to be
unenforceable or invalid by any court of competent jurisdiction, the
validity and enforceability of the remaining provisions shall not be
affected thereby. This Agreement shall be governed by the laws of the State
of Texas without regard to conflicts of law rules.
[signature page follows]
THE SECURITIES SUBSCRIBED FOR HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES ACT AND MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF ABSENT SUCH REGISTRATION OR AN
EXEMPTION THEREFROM.
THIS SIGNATURE PAGE SHOULD BE DULY EXECUTED BY THE PURCHASER AND THE ENTIRE
EXECUTED SUBSCRIPTION AGREEMENT SHOULD BE DELIVERED TO DATA RACE, INC., ATTN:
SENIOR VICE PRESIDENT, AT 12400 NETWORK BOULEVARD, SAN ANTONIO, TEXAS 78216.
================================================================================
The undersigned hereby irrevocably subscribes for 44,444 Shares and 44,444
Warrants (as defined in the Subscription Agreement), at an aggregate price of
$100,000.
The undersigned represents that the undersigned has read the above
Subscription Agreement and the representations therein made by the undersigned
are true and correct.
IN WITNESS WHEREOF, this Subscription Agreement has been executed by the
undersigned as of January 4, 1999.
/s/ Dr. W. B. Barker
------------------------------
Dr. W. B. Barker
Address:
c/o DATA RACE, Inc.
12400 Network Boulevard
San Antonio, Texas 78249
Tel: (210) 263-2200
Fax: (210) 558-0363
SUBSCRIPTION ACCEPTED:
DATA RACE, INC.
By: /s/ Gregory T. Skalla
--------------------------------------------
Gregory T. Skalla, Senior Vice President and
Chief Financial Officer
Date: January 4, 1999.