XATA CORPORATION AMENDED AND RESTATED VOTING AGREEMENT
Exhibit 9.1
XATA CORPORATION
AMENDED AND RESTATED VOTING AGREEMENT
AMENDED AND RESTATED VOTING AGREEMENT
This Amended and Restated Voting Agreement (the “Agreement”) is made as of the
7th day of September, 2005, by and among Xata Corporation, a Minnesota
corporation (the “Company”), funds associated with Trident Capital, Inc. (collectively, “Trident”),
and those certain holders of the Company’s Common Stock listed on Exhibit A hereto (the “Major
Stockholders” and together with Trident, each a “Stockholder” and collectively, the
“Stockholders”).
This Agreement amends and restates the Voting Agreement by and among the same parties dated
December 6, 2003, and said 2003 Voting Agreement is superseded and replaced by this Agreement.
WITNESSETH
Whereas, the Major Stockholders are the beneficial owners of shares of the Common
Stock of the Company (the “Major Stockholders Stock”);
Whereas, Trident holds shares of the Company’s Series B Preferred Stock (the “Series
B Preferred Stock”) and related warrants to purchase Common Stock (the “B Warrants”), pursuant to
that certain Common Stock Warrant and Series B Preferred Stock Purchase Agreement (the “Series B
Purchase Agreement”) dated December 6, 2003;
Whereas, Trident holds shares of the Company’s Series C Preferred Stock (the “Series
C Preferred Stock”) and warrants to purchase Common Stock (the “C Warrants”), pursuant to that
certain Common Stock Warrant and Series C Preferred Stock Purchase Agreement (the “Series C
Purchase Agreement”) of even date herewith;
Whereas, the obligations in the Series B Purchase Agreement and the Series C Purchase
Agreement are conditioned upon the execution and delivery of a voting agreement in the form of this
Agreement; and
Whereas, in connection with the consummation of the financings through the Series B
Preferred Stock and the Series C Preferred Stock (the “Financings”), the Company and the
Stockholders have agreed to provide for the future voting of their shares of the Company’s capital
stock as set forth below.
Now, Therefore, in consideration of these premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
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AGREEMENT
1. Voting.
1.1 Stockholder Shares. The Stockholders each agree to hold all shares of voting capital
stock of the Company (including but not limited to the Major Stockholders Stock, the Series B
Preferred Stock, the Series C Preferred Stock, all shares of Common Stock issued or issuable upon
conversion of the Series B Preferred Stock and Series C Preferred Stock and all shares of Common
Stock issued upon exercise of the B Warrants and C Warrants) registered in their respective names
or beneficially owned by them as of the date hereof and any and all other equity securities of the
Company legally or beneficially acquired by each of the Stockholders after the date hereof
(hereinafter collectively referred to as the “Stockholder Shares”) subject to, and to vote the
Stockholder Shares in accordance with, the provisions of this Agreement.
1.2 Election of Directors.
(a) On all matters relating to the election and removal of directors of the Company, if (i)
the holders of Series B Preferred Stock of the Company (the “Series B Preferred”) no longer have
the right to elect two (2) directors pursuant to Section 8 of the Company’s Certificate of
Designation of Preferences of Series B Preferred Stock filed on December 8, 2003, as amended from
time to time (the “Certificate of Series B Designation”) but (ii) Trident continues to hold the
Required Number of Common Equivalents (as defined below), the Stockholders agree to vote all
Stockholder Shares held by them (or the holders thereof shall consent pursuant to an action by
written consent of the holders of capital stock of the Company) so as to elect members of the
Company’s Board of Directors as follows:
(i) For so long as Trident continues to hold the Required Number of Common Equivalents (as
defined below), at each election of or action by written consent to elect directors, the
Stockholders shall vote all of their respective Stockholder Shares so as to elect the Trident
Designees described in Section 1.2(a)(ii) below. Any vote taken to remove any director elected
pursuant to this Section 1.2(a), or to fill any vacancy created by the resignation, removal or
death of a director elected pursuant to this Section 1.2(a), shall also be subject to the
provisions of this Section 1.2(a). Upon the request of Trident, each Stockholder agrees to vote
its Stockholder Shares for the removal of either Trident Designee.
(ii) For the purposes of this Section 1.2, the following definitions shall apply:
(1) “Trident Designees” shall mean (i) if the authorized size of the Company’s Board of
Directors is eight (8) members or more, the Trident Designees shall consist of two (2) individuals
that are nominated by Trident; or (ii) if the authorized size of the Company’s Board of Directors
is seven (7) members or less, the Trident Designees shall consist of (x) one (1) individual
nominated by Trident and (y) one (1) individual who is an industry representative not affiliated
with the Company that is nominated by Trident and acceptable to a majority of the remaining members
of the Board of Directors.
(2) “Required Number of Common Equivalents” shall mean at least 800,000 shares of Common Stock
(which shall include (i) any shares of Common Stock
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issued to Trident or its affiliates, (ii) any shares of Common Stock issuable upon conversion
of any Series B Preferred Stock or Series C Preferred Stock held by Trident or its affiliates or
(iii) any shares of Common Stock issuable upon the exercise of warrants to purchase Common Stock
held by Trident or its affiliates).
On all matters relating to the election and removal of directors of the Company, if (i) the holders
of Series B Preferred are entitled to elect two (2) directors pursuant to Section 8 of the
Company’s Certificate of B Designation and (ii) Trident continues to hold the Required Number of
Common Equivalents, Trident agrees to vote all Series B Preferred and Series C Preferred held by it
(or shall consent pursuant to an action by written consent of the holders of capital stock of the
Company) so as to elect the Trident Designees as defined in Section 1.2(a)(ii).
1.3 Protective Voting Covenant.
(a) For so long as any shares of Series B Preferred Stock remain outstanding, the Company
shall not take any action to increase the authorized number of shares of Series B Preferred Stock
without the written consent of holders of not less than sixty percent (60%) of the outstanding
shares of Series B Preferred Stock.
(b) For so long as any shares of Series C Preferred Stock remain outstanding, the Company
shall not take any action to increase the authorized number of shares of Series C Preferred Stock
without the written consent of holders of not less than sixty percent (60%) of the outstanding
shares of Series C Preferred Stock.
2. Committees. Upon the request of Trident, the Company shall use its best efforts to
cause its Board of Directors to appoint at least one Trident Designee (as specified by Trident) to
serve as a member of each committee of the Board of Directors, subject to any restrictions on
committee membership that may be imposed by the Xxxxxxxx-Xxxxx Act of 2002, Nasdaq (or other
securities exchange on which the Company’s securities are traded) and the Securities and Exchange
Committee, or any similar restriction applicable to the Company.
3. Indemnification Agreements. The Company shall enter into an indemnification
agreement with each Trident Designee, in the form attached as Exhibit G to the Series B Purchase
Agreement.
4. Fees and Expenses. The Company agrees that, for so long as Trident Designees are
represented on the Board, the Company shall reimburse such Trident Designees for their reasonable
out-of-pocket expenses incurred in attending meetings of the Board or otherwise acting on behalf of
the Company at the request and direction of the Board.
5. Termination.
5.1 This Agreement shall continue in full force and effect from the date hereof through the
earliest of the following dates, on which date it shall terminate in its entirety:
(a) December 6, 2013;
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(b) the date on which Trident ceases to hold the Required Number of Common Equivalents; or
(c) the date as of which the parties hereto terminate this Agreement by written consent of (i)
the Company and (ii) holders of a majority of the shares of capital stock of the Company then held
by Trident (on an as-converted into Common Stock basis).
6. Transfers of Major Stockholder Stock.
6.1 Permitted Transfers. Notwithstanding anything to the contrary contained herein, shares of
Major Stockholder Stock that (i) are sold by a Major Stockholder in transactions effected on a
national securities exchange or through the Nasdaq Stock Market (excluding block trades of 10,000
shares or more to a single purchaser) or (ii) are transferred as bona fide gifts or donations to
charitable organizations, (each, a “Permitted Transfer”) in either case, shall be transferred free
and clear of any restrictions on voting as described herein. In the case of block trades of 10,000
shares or more to a single purchaser, and all other sales or transfers of Major Stockholder Stock
that are not Permitted Transfers (each a “Restricted Transfer”), such transfers shall be permitted
to be made free and clear of any restrictions on voting as described herein, provided that such
Major Stockholder shall first grant to Trident the right of first refusal set forth in Section 6.2.
6.2 Right of First Refusal. If a Major Stockholder proposes to sell any Major Stockholder
Stock in a Restricted Transfer (the “Restricted Transfer Shares”), Trident shall have a right of
first refusal to purchase all (but not less than all) of such Restricted Transfer Shares. The
Major Stockholder shall give Trident written notice (the “Transfer Notice”) of its intention,
describing the Restricted Transfer, the price at which such Major Stockholder is proposing to sell
the Restricted Transfer Shares (the “Offer Price”), and the terms and conditions upon which such
Major Stockholder proposes to issue the same. Trident shall have seven (7) days from the date of
receipt of such Transfer Notice to agree to purchase all (but not less than all) of the Restricted
Transfer Shares proposed to be sold, at the Offer Price and upon the other terms and conditions
specified in the Transfer Notice by giving written notice to such Major Stockholder. If Trident
elects to not exercise its right of first refusal as to such Restricted Transfer Shares, the Major
Stockholder may sell the Restricted Transfer Shares to any person or persons at the Sale Price and
upon the terms and conditions specified in the Transfer Notice.
7. Miscellaneous.
7.1 Specific Performance. The parties hereto hereby declare that it is impossible to measure
in money the damages which will accrue to a party hereto or to their heirs, personal
representatives, or assigns by reason of a failure to perform any of the obligations under this
Agreement and agree that the terms of this Agreement shall be specifically enforceable. If any
party hereto or his heirs, personal representatives, or assigns institutes any action or proceeding
to specifically enforce the provisions hereof, any person against whom such action or proceeding is
brought hereby waives the claim or defense therein that such party or such personal representative
has an adequate remedy at law, and such person shall not offer in any such action or proceeding the
claim or defense that such remedy at law exists.
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7.2 Governing Law. This Agreement shall be governed by and construed under the laws of the
State of Delaware as such laws are applied to agreements among Delaware residents entered into and
performed entirely within the State of Delaware, without reference to the conflict of laws
provisions thereof. The parties agree that any action brought by either party under or in
relation to this Agreement, including without limitation to interpret or enforce any provision of
this Agreement, shall be brought in, and each party agrees to and does hereby submit to the
jurisdiction and venue of, any state or federal court located in the County of Santa Clara,
California.
7.3 Amendment or Waiver. This Agreement may be amended or modified (or provisions of this
Agreement waived) only upon the written consent of (i) the Company, (ii) holders of a majority of
the shares of capital stock of the Company then held by Trident (on an as-converted into Common
Stock basis) and (iii) holders of a majority in interest of the Major Stockholder Shares. Any
amendment or waiver so effected shall be binding upon the Company, each of the parties hereto and
any assignee of any such party.
7.4 Severability. In the event one or more of the provisions of this Agreement should, for
any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
7.5 Successors and Assigns. The provisions hereof shall inure to the benefit of, and be
binding upon, the parties hereto and their respective successors, assigns, heirs, executors and
administrators and other legal representatives.
7.6 Additional Shares. In the event that subsequent to the date of this Agreement any shares
or other securities are issued on, or in exchange for, any of the Stockholder Shares by reason of
any stock dividend, stock split, combination of shares, reclassification or the like, such shares
or securities shall be deemed to be Stockholder Shares, as the case may be, for purposes of this
Agreement.
7.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which
will be deemed an original, but all of which together shall constitute one instrument.
7.8 Waiver. No waivers of any breach of this Agreement extended by any party hereto to any
other party shall be construed as a waiver of any rights or remedies of any other party hereto or
with respect to any subsequent breach.
7.9 Delays or Omissions. It is agreed that no delay or omission to exercise any right, power
or remedy accruing to any party, upon any breach, default or noncompliance by another party under
this Agreement shall impair any such right, power or remedy, nor shall it be construed to be a
waiver of any such breach, default or noncompliance, or any acquiescence therein, or of or in any
similar breach, default or noncompliance thereafter occurring. It is further agreed that any
waiver, permit, consent or approval of any kind or character on any party’s part of any breach,
default or noncompliance under this Agreement or any waiver on such
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party’s part of any provisions or conditions of the Agreement must be in writing and shall be
effective only to the extent specifically set forth in such writing. All remedies, either under
this Agreement by law, or otherwise afforded to any party, shall be cumulative and not alternative.
7.10 Attorney’s Fees. In the event that any suit or action is instituted under or in relation
to this Agreement, including without limitation to enforce any provision in this Agreement, the
prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs
and expenses of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of attorneys and
accountants, which shall include, without limitation, all fees, costs and expenses of appeals.
7.11 Notices. All notices required in connection with this Agreement shall be in writing and
shall be deemed effectively given upon the earlier of actual receipt of: (a) personal delivery to
the party to be notified, (b) one business day after the date of confirmed transmission by
facsimile, (c) five (5) days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) business day after the business day of deposit with a
nationally recognized overnight courier, specifying next day delivery, freight prepaid, with
written notification of receipt. All communications shall be sent to the address of the holder as
specified on the signature page hereto or at such address as such party may designate by ten (10)
days advance written notice to the other parties hereto.
7.12 Entire Agreement. This Agreement and the Exhibits hereto, along with the Series B
Purchase Agreement, Series C Purchase Agreement, and the other documents delivered pursuant thereto
constitute the full and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof and no party shall be liable or bound to any other in any manner by any
oral or written representations, warranties, covenants and agreements except as specifically set
forth herein and therein. Each party expressly represents and warrants that it is not relying on
any oral or written representations, warranties, covenants or agreements outside of this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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In Witness Whereof, the parties hereto have caused this Agreement to be executed by
their duly authorized representatives as of the day and year first above written.
COMPANY:
XATA CORPORATION
By:
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| Xxxx X. Ties | ||||
| Chief Financial Officer |
TRIDENT:
Trident Capital Fund-V, L.P.
Trident Capital Fund-V Affiliates Fund, L.P.
Trident Capital Fund-V Affiliates Fund (Q), L.P.
Trident Capital Fund-V Principals Fund, L.P.
Trident Capital Parallel Fund-V, C.V.
Trident Capital Fund-V Affiliates Fund, L.P.
Trident Capital Fund-V Affiliates Fund (Q), L.P.
Trident Capital Fund-V Principals Fund, L.P.
Trident Capital Parallel Fund-V, C.V.
Executed on behalf of the forgoing funds by the undersigned, as an authorized signatory of the
respective general partner of each such fund:
(signature) |
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(print name) |
Voting Agreement
Signature Page
Signature Page
| Xxxxxxx X. Flies | ||||
| Xxxxxxx X. Flies Revocable Trust UA 11/14/96 | ||||
By: |
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Name: |
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Title: |
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| Xxxxx Xxxx Flies Revocable Trust UA 11/14/96 | ||||
By: |
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Name: |
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Title: |
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| Xxxxxxx X. Flies and Xxxxx Xxxx Flies, JT | ||||
Voting Agreement
Signature Page
Signature Page
Exhibit A
Major Stockholders
Xxxx Deere Special Technologies Group, Inc.
Xxxxxxx X. Flies
Xxxxxxx X. Flies Revocable Trust UA 11/14/96
Xxxxx Xxxx Flies Revocable Trust UA 11/14/96
Xxxxxxx X. Flies and Xxxxx Xxxx Flies, JT
Xxxxxxx X. Flies
Xxxxxxx X. Flies Revocable Trust UA 11/14/96
Xxxxx Xxxx Flies Revocable Trust UA 11/14/96
Xxxxxxx X. Flies and Xxxxx Xxxx Flies, JT
