SELLING STOCKHOLDER AGREEMENT
This SELLING STOCKHOLDER AGREEMENT (this "Agreement") is entered into
as of the 30th day of August, 2000, by and between ▇▇▇▇ Deere Special
Technologies Group, Inc., a Delaware corporation (the "Investor") and XATA
Investment Partners, LLC (the "Selling Stockholder").
WHEREAS, the Investor and Xata Corporation, a Minnesota corporation
(the "Company") are entering into a Stock Purchase Agreement of even date
herewith (the "Company Stock Purchase Agreement") whereby the Company will sell,
and the Investor will purchase, shares of the Company's Common Stock (the
"Common Stock");
WHEREAS, in connection with the transactions contemplated by the
Company Stock Purchase Agreement, the Investor desires to purchase from the
Selling Stockholder, and the Selling Stockholder desires to sell to the
Investor, 200,000 shares of Common Stock on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
and obligations hereafter set froth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
intending to be legally bound, hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1. SALE OF SHARES OF COMMON STOCK.
(a) SALE OF SHARES OF COMMON STOCK. Subject to the terms and
conditions hereof, at the Closing the Selling Stockholder shall sell to the
Investor, and the Investor shall purchase from the Selling Stockholder, two
hundred thousand (200,000) shares of Common Stock (the "Selling Stockholder
Shares") for the Purchase Price provided in Section 1.1(b) below.
(b) PURCHASE PRICE. The purchase price for the Purchased
Shares shall be 82 percent (82%) of the average of the daily Bid and Ask (4:00
p.m. closing) price for the Company's common stock, as reported by the Nasdaq
Smallcap Market quotation, for the 30 day period preceding the date of this
Agreement (the "Purchase Price").
1.2. AGREEMENTS. Each of the parties hereto agrees at the Closing to
enter into the respective agreements described in Article VI to which they are
indicated as a party.
ARTICLE II
CLOSING; DELIVERIES
2.1. CLOSING. The closing of the purchase and sale of the Selling
Stockholder Shares (the "Closing") shall occur on August 31, 2000, or on such
date as the 1st Closing, as that term is defined in the Company Stock Purchase
Agreement, shall occur, and shall be held at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, L.L.P., Atlanta, Georgia, or at such other place as the parties may
agree.
2.2. DELIVERIES. At the Closing, the Selling Stockholder shall
deliver to the Investor certificates evidencing the Selling Stockholder
Shares, against payment of the Purchase Price. The Selling Stockholder shall
also deliver such other instruments and documents as are described in Article
VI.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDER
The Selling Stockholder represents and warrants to the Investor the following:
3.1. POWER AND AUTHORITY; NO DEFAULT. The Selling Stockholder has good
and valid title to all of the Selling Stockholder Shares, free and clear of all
liens, charges and encumbrances, and all of the Selling Stockholder Shares will
be transferred to the Investor free and clear of all liens, charges, claims and
encumbrances whatsoever (other than those in favor of the Company). The
performance by the Selling Stockholder of its obligations under this Agreement
and the consummation of the transactions herein contemplated will not result in
a breach or violation of any terms or provisions of, or constitute a default
under, any statute, any indenture, mortgage, deed of trust, note agreement or
other agreement or instrument to which the Selling Stockholder is bound, or any
law, order, rule, regulation of any court or governmental agency or body having
jurisdiction over the Selling Stockholder, the property of the Selling
Stockholder or the Selling Stockholder Shares, and no consent, approval,
authorization or order of any court or governmental agency or body is required
for the consummation by the Selling Stockholder of the transactions contemplated
by this Agreement.
3.2. DUE EXECUTION. This Agreement has been duly executed and delivered
by the Selling Stockholder and is a valid and binding obligation of the Selling
Stockholder, enforceable in accordance with its terms.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor represents and warrants to the Selling Stockholder that:
4.1. INTENT. The Investor is entering into this Agreement for its own
account and the Investor has no view to the distribution of the Selling
Stockholder Shares and has no present
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arrangement (whether or not legally binding) at any time to sell the Selling
Stockholder Shares to or through any person or entity.
4.2. SOPHISTICATED INVESTOR. The Investor is a sophisticated investor
(as described in Rule 506(b)(2)(ii) of Regulation D) and an accredited investor
(as defined in Rule 501 of Regulation D), and the Investor has such experience
in business and financial matters that it is capable of evaluating the merits
and risks of an investment in the Common Stock. The Investor acknowledges that
an investment in the Common Stock is speculative and involves a high degree of
risk.
4.3. AUTHORITY. This Agreement has been duly authorized by all
necessary corporate action and no further consent or authorization of the
Investor, or its Board of Directors or stockholders is required. This Agreement
was validly executed and delivered by the Investor and each is a valid and
binding agreement of the Investor enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, or similar laws relating
to, or affecting generally the enforcement of, creditors' rights and remedies or
by other equitable principles of general application.
4.4. NOT AN AFFILIATE. The Investor is not an officer, director or
"affiliate" (as that term is defined in Rule 405 of the Securities Act) of the
Company.
4.5. ORGANIZATION AND STANDING. the Investor is duly organized, validly
existing, and in good standing under the laws of Delaware.
4.6. ABSENCE OF CONFLICTS. The execution and delivery of this Agreement
and any other document or instrument contemplated hereby, and the consummation
of the transactions contemplated thereby, and compliance with the requirements
thereof, will not (a) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Investor, or, to the Investor's
knowledge, (b) violate any provision of any indenture, instrument or agreement
to which the Investor is a party or is subject, or by which the Investor or any
of its assets is bound, (c) conflict with or constitute a material default
thereunder, (d) result in the creation or imposition of any lien pursuant to the
terms of any such indenture, instrument or agreement, or constitute a breach of
any fiduciary duty owed by the Investor to any third party, or (e) require the
approval of any third-party (that has not been obtained) pursuant to any
material contract to which the Investor is subject or to which any of its
assets, operations or management may be subject.
4.7. MANNER OF SALE. At no time was the Investor presented with or
solicited by or through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or advertising.
4.8. RESALE RESTRICTIONS. It is acknowledged by the Investor that any
Common Stock to be acquired by the Investor have not been registered under the
federal securities laws or any applicable state securities laws in reliance upon
exemptions available for non-public or limited offerings. The Investor
understands that it must bear the economic risk of the investment in the Common
Stock because they have not been so registered and therefore are subject to
restrictions
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upon transfer such that they may not be sold or otherwise transferred unless
registered under the applicable securities laws or an exemption from such
registration is available.
ARTICLE V
CONDITIONS TO CLOSING OF THE SELLING STOCKHOLDER
The obligations of the Selling Stockholder to sell the Selling
Stockholder Shares at the Closing is subject to the fulfillment on or prior to
the Closing of the following conditions:
5.1. REPRESENTATIONS. The representations made by the Investor in
Article IV hereof shall be true and correct in all material respects when made
and shall be true and correct at the Closing with the same force and effect as
if they had been made on and as of said date.
5.2. PERFORMANCE. All covenants, agreements and conditions contained in
this Agreement to be performed by or complied with by the Investor on or prior
to the Closing shall have been performed or complied with in all material
respects.
5.3. DELIVERY OF PURCHASE PRICE. The Investor shall have delivered to
the Selling Stockholder, against delivery of certificates evidencing the
Purchased Shares, the Purchase Price.
5.4. PURCHASE OF SHARES FROM COMPANY. The 1st Closing, as that term is
defined in the Company Stock Purchase Agreement, shall have occurred or shall
occur concurrently with the Closing.
ARTICLE VI
CONDITIONS TO CLOSING OF THE INVESTOR
6.1. REPRESENTATIONS. The representations and warranties made by the
Selling Stockholder in Article III shall be true and correct in all material
respects when made, and shall be true and correct at the Closing with the same
force and effect as if they had been made on and as of said date.
6.2. PERFORMANCE. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with by the Selling Stockholder on or
prior to the Closing shall have been performed or complied with in all respects.
6.3. CONVERSION. XATA Investment Partners, LLC, shall have converted
its shares of Series A 8% Convertible Preferred Stock of the Company (the
"Series A Preferred Stock") into Common Stock.
6.4. PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transactions contemplated hereby and all documents and
instruments incident to such
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transactions shall be reasonably satisfactory in form and substance to the
Investor and its legal counsel.
6.5. NO SUSPENSION OF TRADING IN OR DELISTING OF COMMON STOCK. The
trading of the Common Stock shall not have been suspended by the SEC, the Nasdaq
SmallCap Market or the NASD and shall not have been delisted from the Nasdaq
SmallCap Market.
6.6. APPROPRIATIONS COMMITTEE APPROVAL. The Appropriations Committee of
Deere and Company shall have approved this Agreement, the Company Stock Purchase
Agreement and the transactions contemplated herein and therein.
6.7. CONDITIONS TO PURCHASE OF SHARES FROM COMPANY. All conditions to
closing of the Investor contained in Article VI of the Company Stock Purchase
Agreement, other than those contained in Section 6.3, 6.10, 6.18(b) and 6.20
therein, shall have been satisfied.
6.8. PURCHASE OF SHARES FROM COMPANY. The 1st Closing, as that term is
defined in the Company Stock Purchase Agreement, shall have occurred or shall
occur concurrently with the Closing.
ARTICLE VII
COVENANTS OF THE SELLING STOCKHOLDER
7.1 CONVERSION OF SERIES A PREFERRED STOCK. The Selling Stockholder
shall use his best efforts to cause to be converted the shares of Series A
Preferred Stock held by XATA Investment Partners, LLC into Common Stock.
ARTICLE VIII
INDEMNIFICATION
8.1 OBLIGATION TO INDEMNIFY. Subject to the limitations set forth in
this Article VIII, each party hereto shall indemnify and hold the other party
harmless from and against any and all losses, claims, damages, expenses or
liabilities (including, without limitation, the costs of any investigation or
suit and counsel fees related thereto) ("Damages") asserted against, imposed
upon or incurred by such other party resulting from a breach by the indemnifying
party of any of its representations, warranties or covenants made in this
Agreement or from any misrepresentation in or omission from any certificate or
other instrument furnished or to be furnished pursuant to this Agreement.
8.2 GENERAL INDEMNIFICATION PROCEDURES.
(a) A party seeking indemnification pursuant to Section 8.1
(an "INDEMNIFIED PARTY") shall give prompt notice to the party from whom such
indemnification is sought (the "INDEMNIFYING PARTY") of the assertion of any
indemnifiable claim for Damages or the commencement of any action, suit or
proceeding, in respect of which indemnity may be sought
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hereunder and will give the Indemnifying Party such information with respect
thereto as the Indemnifying Party may reasonably request, but failure to give
such notice shall not relieve the Indemnifying Party of any liability
hereunder (except to the extent that the Indemnifying Party has suffered
actual prejudice thereby). If any Indemnifying Party shall be obligated to
indemnify an Indemnified Party hereunder, such Indemnifying Party shall pay
to such Indemnified Party the amount to which such Indemnified Party shall be
entitled.
(b) The Indemnifying Party shall have the right exercisable by
written notice to the Indemnified Party within fifteen (15) days of receipt of
notice from the Indemnified Party of the commencement of or assertion of any
claim or action, suit or proceeding by a person not a party to this Agreement
(other than an Affiliate (as defined in Section 9.3) of any party hereto) in
respect of which indemnity may be sought hereunder (a "Third Party Claim"), to
assume the defense and control the settlement of such Third Party Claim. The
Indemnifying Party or the Indemnified Party, as the case may be, shall have the
right to participate in (but not control), at its own expense, the defense of
any Third Party Claim which the other is defending as provided in this
Agreement. The Indemnifying Party, if it shall have assumed the defense of any
Third Party Claim as provided in this Agreement, shall not consent to a
settlement of, or the entry of any judgment arising from, any such Third Party
Claim without the prior written consent of the Indemnified Party (which consent
shall not be unreasonably withheld or delayed).
(c) No action or claim for indemnification under Section 8.1
arising out of or resulting from a breach of representations and warranties
contained in Articles III and IV herein shall be brought or made until such time
as all indemnifiable claims of a party exceed $15,000.
ARTICLE IX
MISCELLANEOUS
9.1. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Georgia.
9.2. SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by the Investor and
the closings of the transactions contemplated hereby.
9.3. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided in
this Article IX, the provisions of this Agreement shall inure to the benefit of,
and be binding upon, the successors, assigns, heirs, executors and
administrators of the Investor. The rights, remedies and entitlements of the
Investor under this Agreement may be assigned in full or in part at any time
after the date of this Agreement. The Selling Stockholder may not assign his
rights hereunder.
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9.4. ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Company Stock
Purchase Agreement and the other documents delivered pursuant hereto and thereto
constitute the full and entire understanding and agreement among the parties
with regard to the subjects hereof and thereof. Neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated orally, but only by
a written instrument signed by both parties hereto.
9.5. NOTICES. All notices and other communications required or
permitted hereunder shall be given in writing and shall be deemed effectively
given upon personal delivery or three (3) business days following upon deposit
with the United States Postal Service, by certified mail, return receipt
requested, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to the Investor, at
▇▇▇▇ Deere Special Technologies Group, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
or at such other address as the Investor shall have furnished to the Selling
Stockholder in writing or (b) if to the Selling Stockholder, at such address as
the Selling Stockholder shall have furnished the Company or the Investor in
writing.
9.6. DELAYS OR OMISSIONS: REMEDIES CUMULATIVE. No delay or omission to
exercise any right, power or remedy accruing to the Investor, upon any breach or
default under this Agreement, shall impair any such right, power or remedy of
the Investor or be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. All
of the Investor's remedies, either under this Agreement, or by law or otherwise
afforded to the Investor, shall be cumulative and not alternative.
9.7. AGENT'S FEES. Each party (i) represents and warrants that it has
retained no finder or broker in connection with the transactions contemplated by
this Agreement (except as disclosed to the other parties hereto as of the date
hereof) and (ii) hereby agrees to indemnify and to hold the other parties
harmless of and from any liability for commissions or compensation in the nature
of an agent's, finder's or broker's fee to any broker or other person or firm
(and the cost and expenses of defending against such liability or asserted
liability) for which said party is responsible.
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9.8. EXPENSES. The Investor and the Selling Stockholder shall bear
their own expenses and legal fees (and expenses and disbursements of its legal
counsel) incurred on their behalf with respect to this Agreement and the
transactions contemplated hereby.
9.9. CONSTRUCTION OF CERTAIN TERMS. The titles of the articles,
sections, and subsections of this Agreement are for convenience of reference
only and are not to be considered in construing this Agreement. Wherever the
words "including," "include" or "includes" are used in this Agreement, they
shall be deemed followed by the words "without limitation." References to any
gender shall be deemed to mean any gender.
9.10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
9.11. TIMELY PERFORMANCE. Time is of the essence as to the performance
of the obligations required of the respective parties under this Agreement.
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IN WITNESS WHEREOF, the Investor and the Selling Stockholder have
executed and delivered this Agreement as of the day and year first above
written.
INVESTOR:
▇▇▇▇ Deere Special Technologies Group, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., President
SELLING STOCKHOLDER:
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XATA Investment Partners, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇