EXHIBIT 10.1
June 1, 1998
DATA RACE, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Re: Series C Convertible Participating Preferred Stock and Warrants
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Dear Xx. Xxxxxx:
We refer to the Securities Purchase Agreement, dated November 7, 1997, as
amended by the letter agreement dated January 30, 1998 (the "January Letter
Agreement") and the letter agreement dated April 14, 1998 (the "April Letter
Agreement"), (the "Purchase Agreement"), by and among DATA RACE, Inc. (the
"Company") and the buyers named therein (the "Buyers") relating to the sale by
the Company of shares of Series C Convertible Participating Preferred Stock (the
"Preferred Stock") and the related warrants (the "Warrants") of the Company to
the Buyers. Pursuant to the terms of the Purchase Agreement, on November 12,
1997 the Company sold 5,000 shares of Preferred Stock and 139,861 Warrants to
the Buyers. Subject to the terms and conditions set forth in the Purchase
Agreement, the Company will sell an aggregate of an additional 3,000 shares of
Preferred Stock (the "Additional Preferred Shares") and the related Warrants to
the Buyers.
The Company and the Buyers have agreed to the following change to the
Purchase Agreement, including the January Letter Agreement and the April Letter
Agreement:
Section 1(c) of the Purchase Agreement is amended to define the
"Additional Closing Date" as "June 10, 1998 (or such later date as is
mutually agreed to by the Company and the Buyers)" rather than the
Additional Closing Date currently set forth in Section 1(c) of the
Purchase Agreement. Each of the Buyers acknowledges it has received
the Additional Share Notice.
Except as modified herein, the Purchase Agreement, including the January
Letter Agreement and the April Letter Agreement, remain in full force and effect
in accordance with its terms. Pursuant to Section 2(b)(ii) of the Statement of
Designations, Preferences and Rights of Series C Convertible Participating
Preferred Stock of DATA RACE, Inc. (the "Statement of Designations"), any
Additional Preferred Shares issued on June 10, 1998 will have an initial Fixed
Conversion Price equal to 120% of the Market Price (as defined in the Statement
of Designations) of the Common Stock on June 10, 1998.
This letter agreement is effective June 1, 1998 and shall be binding upon
the parties and their successors and assigns and may be amended or terminated
only by a writing signed by all the parties hereto.
Please indicate your agreement to the above by signing in the space
provided below and faxing a signed copy to each of the Buyers listed below.
BUYERS:
XXXXXX PARTNERS
By: /s/ XXXX XXXXX
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Name: Xxxx Xxxxx
Title: Officer
OLYMPUS SECURITIES, LTD.
By: /s/ XXXX XXXXX
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Name: Xxxx Xxxxx
Its: Director
CC INVESTMENTS, LDC
By: /s/ XXXX X. XXXXXXXXX
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Name: Xxxx X. Xxxxxxxxx
Title: Director
CAPITAL VENTURES INTERNATIONAL
By: Heights Capital Management
Its: Authorized Agent
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Its: Secretary and General Counsel
Accepted and agreed to this
1st day of June, 1998:
DATA RACE, INC.
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Vice President and Chief Financial Officer
