REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is entered into
as of August 30, 2000, by and between XATA CORPORATION, a Minnesota
corporation (the "COMPANY") and XXXX DEERE SPECIAL TECHNOLOGIES GROUP, INC., a
Delaware corporation (the "INVESTOR").
RECITALS:
A. Concurrently herewith, the Company has agreed to sell to the
Investor up to 3,147,000 shares (the "PURCHASED SHARES") of Common Stock of
the Company (the "COMMON STOCK") pursuant to that certain Stock Purchase
Agreement of even date herewith (the "STOCK PURCHASE AGREEMENT") between the
Company and the Investor
B. Concurrently herewith, the Company has granted to the
Investor an option to convert that certain $1,000,000 Promissory Note from the
Company to the Investor (the "NOTE") into shares (the "NOTE Shares") of Common
Stock pursuant to the Stock Purchase Agreement.
C. Concurrently herewith, XATA Investment Partners, LLC has
agreed to sell to the Investor up to 200,000 shares (the "SELLING STOCKHOLDER
SHARES") of Common Stock pursuant to the Selling Stockholder Agreement.
D. It is a condition to the consummation of the transactions
contemplated by the Stock Purchase Agreement that the Company and the Investor
enter into this Agreement whereby the Company shall grant, and the Investor
shall obtain, the rights relating to the registration of the Registrable
Securities under the Securities Act, as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1. CERTAIN DEFINITIONS. For purposes of this Agreement:
(a) The term "COMMISSION" means the Securities and
Exchange Commission.
(b) The term "FORM S-3" means such form under the
Securities Act as is in effect on the date hereof or any successor form under
the Securities Act;
(c) The term "HOLDERS" means the Investor and any other
person holding Registrable Securities to whom these registration rights have
been transferred pursuant to Section 2.8 hereof.
(d) The terms "REGISTER," "REGISTERED" and
"REGISTRATION" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities
Act of 1933, as amended, or successor statute (the "SECURITIES ACT"), and the
declaration or ordering of effectiveness of such registration statement or
document.
(e) The term "REGISTRABLE SECURITIES" means (i) the
Purchased Shares and the Note Shares, (ii) the Selling Stockholder Shares and
(iii) any other shares of Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of, the Registrable Securities; provided, however, that the
foregoing definition shall exclude in all cases any Registrable Securities
sold by a person in a transaction in which his or her rights under this
Agreement are not assigned. Notwithstanding the foregoing, shares of Common
Stock or other securities will only be treated as Registrable Securities if
and so long as they have not been (A) sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction, or
(B) sold in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof so that all
transfer restrictions, and restrictive legends with respect thereto, if any,
are removed upon the consummation of such sale and are not eligible for resale
under Rule 144.
ARTICLE II
REGISTRATION RIGHTS
2.1. DEMAND REGISTRATION.
(a) If the Company shall receive, any time and from
time to time on or after the date hereof, a written request from the Holders
of 25% of the Registrable Securities then outstanding that the Company file a
registration statement under the Securities Act, then the Company shall,
within ten (10) days of the receipt thereof, give written notice of such
request to all Holders and shall, subject to the limitations of subsection
2.1(b) and 2.1(d), use its best efforts to effect as soon as practicable, the
registration under the Securities Act of all Registrable Securities which the
Holders request in writing to be registered within twenty (20) days of the
mailing of such notice by the Company.
(b) If the Holders initiating the registration request
hereunder ("INITIATING HOLDERS") intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section
2.1 and the Company shall include such information in the written notice
referred to in subsection 2.1(a). The underwriter will be selected by a
majority in interest of the Initiating Holders and reasonably approved by the
Company. In such event, the right of any Holder to include its Registrable
Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed
by a majority in interest of the Initiating Holders and such Holder) to the
extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall (together with the Company as provided in
subsection 2.4(e)) enter into an underwriting agreement in customary form with
the underwriter or
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underwriters selected for such underwriting. Notwithstanding any other
provision of this Section 2.1, if the underwriter advises the Initiating
Holders in writing that marketing factors require a limitation of the number
of shares to be underwritten, then the Initiating Holders shall so advise all
Holders of Registrable Securities which would otherwise be underwritten
pursuant hereto, and the number of shares of Registrable Securities that may
be included in the underwriting shall be allocated among all Holders thereof,
including the Initiating Holders, in proportion (as nearly as practicable) to
the amount of Registrable Securities of the Company owned by each Holder. The
Company shall have the right to include securities for its own account in such
registration, if permitted by the registration form to be filed and the
underwriter so agrees, but only if such inclusion will not limit the number of
securites offered by the Holders.
(c) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this
Section 2.1, a certificate signed by the President or Chief Executive Officer
of the Company stating that in the good faith judgment of the board of
directors of the Company, it would be seriously detrimental to the Company and
its shareholders for such registration statement to be filed and it is
therefore essential to defer the filing of such registration statement, the
Company shall have the right to defer such filing for a period of not more
than ninety (90) days after receipt of the request of the Initiating Holders;
provided, however, that the Company may not utilize this right more than once
in any twelve (12) month period.
(d) In addition and without limitation of Section 2.11
hereof, the Company shall not be obligated to effect, or to take any action to
effect, any registration pursuant to this Section 2.1:
(i) After the Company has effected two
registrations pursuant to Section 2.1 and such registrations have been
declared or ordered effective;
(ii) During the ninety (90) day period prior to
the Company's good faith estimate of the date of filing of a registration
subject to Section 2.2 hereof; provided that the Company (i) is using its best
efforts to cause such registration statement to become effective and (ii)
provides written notice of such proposed filing to the Holders within thirty
(30) days after receipt of the written request from the Holders pursuant to
Section 2.1(a); or
(iii) If the Initiating Holders proposed to
dispose of shares of Registrable Securities that may be immediately registered
on Form S-3 (or any successor form that provides for short-form registration)
pursuant to a request made pursuant to Section 2.3 below; or
(iv) If the Holders, together with the holders of
any other securities of the Company entitled
to inclusion in such registration, propose
to sell Registrable Securities and such
other securities (if any) at an aggregate
price to the public (net of any
underwriters' discounts or commissions) of
less than $100,000; or
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(v) If the Company has, within the six (6) month
period preceding the date of such request,
effected two (2) registrations on Form S-3
for the Holders pursuant to this Section 2.1
that have been declared or ordered
effective.
2.2. COMPANY REGISTRATION.
(a) If the Company proposes to register (including for
this purpose a registration effected by the Company for shareholders other
than the Holders) any of its securities under the Securities Act in connection
with the public offering of such securities solely for cash (other than
registration relating solely to the sale of securities to participants in a
Company stock plan, an offering or sale of securities pursuant to a Form S-4
(or successor form) registration statement or a registration in which the only
stock being registered is Common Stock issuable upon conversion of debt
securities which are also being registered), the Company shall, at such time,
promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing of
such notice by the Company, the Company shall, subject to the provisions of
Section 2.7, cause to be registered under the Securities Act all of the
Registrable Securities that each such Holder has requested to be registered.
(b) In connection with any offering involving an
underwriting of shares of the Company's capital stock, the Company shall not
be required under Section 2.2(a) to include any of the Holders' securities in
such underwriting unless they accept the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it (or by other
persons entitled to select the underwriters), and then only in such quantity
as the underwriters determine in their sole discretion will not jeopardize the
success of the offering by the Company. If the total amount of securities,
including Registrable Securities, requested by shareholders to be included in
such offering exceeds the amount of securities sold other than by the Company
that the underwriters determine in their sole discretion is compatible with
the success of the offering, the underwriters may limit the amount of
securities to be included in the registration and underwriting by the selling
shareholders. The Company shall so advise all Holders of Registrable
Securities which would otherwise be registered and underwritten pursuant
hereto, and the number of securities that may be included in the registration
and underwriting shall be allocated first, among the initiating holders on a
pro rata basis, or as the Company and the initiating holders, if any, may
determine and second, among the Holders and other participating holders, other
than initiating holders, if any, requesting registration in proportion, as
nearly as practicable, to the respective amounts of securities, including
Registrable Securities, that such holders, including Holders, have requested
pursuant to this Section 2.2 to include in such registration. If any Holder
disapproves of the terms of any such underwriting, he may elect to withdraw
therefrom by written notice to the Company and the underwriters. Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration.
2.3. FORM S-3 REGISTRATION. In case the Company shall receive
from the Holders of Registrable Securities a written request or requests that
the Company effect a registration on
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Form S-3 and any related qualification or compliance with respect to all or a
part of the Registrable Securities owned by such Holders, the Company will:
(a) Promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other
Holders; and
(b) As soon as practicable, effect such registration
and all such qualifications and compliances as may be requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder
of Holders joining in such request as are specified in a written request given
within fifteen (15) days after receipt of such written notice from the
Company; PROVIDED, HOWEVER; that the Company shall not be obligated to effect
any such registration, qualification or compliance, pursuant to this Section
2.3 if:
(i) Form S-3 is not available for such
offering by the Holders;
(ii) The Holders, together with the holders of
any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other securities
(if any) at an aggregate price to the public (net of any underwriters'
discounts or commissions) of less than $100,000; or
(iii) The Company has, within the twelve (12)
month period preceding the date of such request, effected two (2)
registrations on Form S-3 for the Holders pursuant to this Section 2.3 that
has been declared or ordered effective.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after receipt
of the request or requests of the Holders.
2.4. OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 2 to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective, and, upon the
request of the Holders of twenty-five percent (25%) of the Registrable
Securities registered thereunder, keep such registration statement effective
for up to one hundred eighty (180) days.
(b) Prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement for up to
one hundred eighty (180) days.
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(c) Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities
or blue sky laws of such jurisdictions as shall be reasonably requested by the
Holders; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
(e) In the event of an underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in
usual and customary form, with the managing underwriter of such offering, and
each Holder participating in such underwriting shall also enter into and
perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening
of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances then existing, such obligation to continue until the earlier of
(i) the sale of all Registrable Securities registered pursuant to a
registration statement of which such prospectus forms a part or (ii) the
withdrawal of such registration statement.
(g) Cause all such Registrable Securities registered
pursuant to this Agreement to be listed on each securities exchange on which
similar securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant to this Agreement and a CUSIP
number for all such Registrable Securities, in each case not later than the
effective date of such registration.
(i) Make available for inspection by any Holder of
Registrable Securities covered by such registration statement, any underwriter
participating in any disposition pursuant to such registration statement and
any attorney, accountant or other agent retained by any such seller or
underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply all information reasonably
requested by any such Holder, underwriter, attorney, accountant or agent in
connection with such registration statement, in each case pursuant to
confidentiality agreements, as appropriate.
(j) Cause the Company's officers to make presentations
to potential purchasers of the Registrable Securities, as reasonably requested
by any Holder of Registrable
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Securities covered by such registration statement or any underwriter
participating in any disposition pursuant to such registration statement.
(k) Permit any Holder of Registrable Securities, which
Holder, in the sole judgment exercised in good faith of such Holder, might be
deemed to be a controlling person of the Company (within the meaning of the
Securities Act or the Exchange Act), to participate in the preparation of any
registration statement covering such Holder's Registrable Securities and to
include therein material, furnished to the Company in writing, which in the
reasonable judgment of such Holder should be included and which is reasonably
acceptable to the Company.
(l) Use its best efforts to furnish, at the request of
any Holder requesting registration of Registrable Securities pursuant to this
Section 2, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this
Section 2, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities become effective, (i)
an opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given
to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Securities and (ii) a letter dated such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters
in an underwritten public offering, addressed to the underwriters, if any, and
to the Holders requesting registration of Registrable Securities.
(m) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available to its
security holders, in each case as soon as practicable, an earning statement
covering a period of at least twelve (12) months, beginning after the
effective date of the registration statement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act.
2.5. FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 2
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such
Holder's Registrable Securities.
2.6. EXPENSES OF REGISTRATION.
(a) EXPENSES OF DEMAND REGISTRATION. All expenses other
than underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 2.1, including
(without limitation) all registration, filing and qualification fees, stock
transfer taxes, printers' and accounting fees, and fees and disbursements of
counsel for the Company, shall be borne by the Company; PROVIDED, HOWEVER,
that the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 2.1 if the registration
request is subsequently withdrawn at the request of the Holders of a majority
of the Registrable Securities to be registered (in which case all
participating Holders
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shall bear such expenses), unless the Holders of a majority of the Registrable
Securities agree to forfeit their right to one (1) demand registration
pursuant to Section 2.1.
(b) EXPENSES OF COMPANY REGISTRATION. All expenses
other than underwriting discounts and commissions reasonably incurred in
connection with registrations, filings or qualifications of Registrable
Securities pursuant to Section 2.2 for each Holder, including (without
limitation) all registration, filing, and qualification fees, printers' and
accounting fees, and fees and disbursements of counsel for the Company, shall
be borne by the Company.
(c) EXPENSES OF REGISTRATION ON FORM S-3. All expenses
other than underwriting discounts and commissions incurred in connection with
registrations requested pursuant to Section 2.3, including (without
limitation) all registration, filing, qualification, printers' and accounting
fees and the fees and disbursements of one counsel for the selling Holders
selected by them, shall be borne by the Company.
2.7. INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 2:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, any "underwriter" (as defined in the
Securities Act) for such Holder and each person, if any, who controls such
Holder or underwriter within the meaning of the Securities Act or the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "VIOLATION"):
(i) Any untrue statement of a material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained in such registration statement or any amendments
or supplements thereto;
(ii) The omission to state therein a material
fact required to be stated therein, or necessary to make the statements
therein not misleading;
(iii) The omission to state in any preliminary
prospectus or final prospectus a material fact necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading; or
(iv) Any material violation by the Company of
the Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law.
The Company will pay to each such Holder, underwriter or controlling person,
as actually incurred, any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability, or action; PROVIDED, HOWEVER, that the indemnity agreement
contained in this subsection 2.7(a) shall not apply to amounts paid
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in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable to any Holder,
underwriter or controlling person for any such loss, claim, damage, liability,
or action to the extent that it arises out of or is based upon a Violation
which occurs; (A) in reliance upon and in conformity with written information
furnished for use in connection with such registration by any such Holder,
underwriter or controlling person; or (B) as a result of failure of any holder
to deliver a prospectus, at all or in a timely manner, PROVIDED FURTHER, that
in no event shall any indemnity under this subsection 2.7(a) exceed the net
proceeds from the offering received by the Company.
(b) To the extent permitted by law, each selling Holder
will indemnify and hold harmless the Company, each of its directors, each of
its officers who has signed the registration statement, each person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act, any underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such underwriter or
other Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Securities Act, the Exchange Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent that
such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder for use in connection with such
registration; and each such Holder will pay, as actually incurred, any legal
or other expenses reasonably incurred by any person intended to be indemnified
pursuant to this subsection 2.7(b), in connection with investigating or
defending any such loss, claim, damage, liability, or action; PROVIDED,
HOWEVER, that the indemnity agreement contained in this subsection 2.7(b)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Holder (which consent shall not be unreasonably withheld); PROVIDED FURTHER,
that in no event shall any indemnity under this subsection 2.7(b) exceed the
net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party
under this Section 2.7 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 2.7,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; PROVIDED, HOWEVER, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by
such counsel in such proceeding. The failure to deliver written
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notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 2.7.
(d) If the indemnification provided for in this Section 2.7 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the Violation(s) that resulted in such loss, liability, claim,
damage or expense as well as any other relevant equitable considerations;
provided, that in no event shall any contribution by a Holder or the Company
under this subsection 2.7(d) exceed the net proceeds from the offering received
by such Holder or the Company, respectively. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(e) The obligations of the Company and Holders under this
Section 2.7 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 2, and otherwise. No
indemnifying party, in the defense of any such loss, claim, change, liability or
action, shall, except with the consent of each indemnified party, consent to
entry of any judgment or enter into any settlement which does not include as a
provision thereof, the giving by the claimant or plaintiff to such indemnified
party of a release from all liability in respect to such loss, claim, damage,
liability or action.
2.8. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company
to register Registrable Securities pursuant to this Section 2 may be assigned
(but only with all related obligations) by a Holder to (i) any "affiliate" of
such Holder (as defined under the Securities Act), (ii) such Holder's spouse,
parents, siblings, children or grandchildren, or other members of such Holder's
immediate or extended family (including relatives by marriage), or to a
custodian, trustee or other fiduciary for the account of such Holder or members
of such Holder's immediate or extended family in connection with an estate
planning transaction, or (iii) a transferee or assignee of at least 100,000
shares of such securities (as adjusted for stock dividends, combinations,
recapitalizations, splits and otherwise), provided the Company is, within a
reasonable time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned and such transferee or
assignee agrees to become a party to this Agreement. For the purposes of
determining the number of shares of Registrable Securities held by a transferee
or assignee, the holdings of transferees and assignees of a business entity who
are affiliates, retired affiliates of such entity (including spouses and
ancestors, lineal descendants and siblings of such affiliates or affiliates who
acquire Registrable Securities by gift, will or intestate succession) shall be
aggregated together and with the business entity; provided that all assignees
and transferees who would not qualify individually for assignment of
registration rights shall have a
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single attorney-in-fact for the purpose of exercising any rights, receiving
notices or taking any action under Section 2.
2.9 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date of this Agreement, the Company shall not, without the prior written consent
of the Holders of a majority of the Registrable Securities then outstanding,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would allow such holder or prospective holder (a) to
include such securities in any registration filed under Section 2.1 or 2.3
hereof, unless under the terms of such agreement, such holder or prospective
holder may include such securities in any such registration only to the extent
that the inclusion of its securities will not reduce the amount of the
Registrable Securities of the Holders which is included, or (b) to make a demand
registration which could result in such registration statement being declared
effective within one hundred eight (180) days of the effective date of any
registration effected pursuant to Section 2.1 or 2.3 hereof.
2.10. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the Commission that may at
any time permit a holder to sell securities of the Company to the public
pursuant to a registration on Form S-3 or without registration, the Company
agrees to:
(a) Make and keep public information available, as those terms
are understood and defined in Commission Rule 144, at all times after the
effective date of the first registration statement filed by the Company for the
offering of its securities to the general public so long as the Company remains
subject to the periodic reporting requirements under Sections 13 or 15(d) of the
Exchange Act;
(b) File with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) Furnish to any Holder, so long as accurate and so long as
the Holder owns any Registrable Securities, forthwith upon request (i) a written
statement by the Company that it has complied with the reporting requirements of
Commission Rule 144 (at any time after ninety (90) days after the effective date
of the first registration statement filed by the Company), the Securities Act
and the Exchange Act (at any time after it has become subject to such reporting
requirements), or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (or any successor form that provides for short-form
registration), (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested in availing any Holder of
any rule or regulation of the Commission which permits the selling of any such
securities without registration or pursuant to such form.
2.11 TERMINATION OF REGISTRATION RIGHTS. The right of any Holder to
request registration or inclusion in any registration pursuant to Section 2.1,
2.2 or 2.3 hereof shall terminate at such time as such Holder owns less than
five percent (5%) of the outstanding capital stock of the
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Company and such Holder can sell all of such Holder's Registrable Securities
under Rule 144 during any ninety (90) day period.
2.12. CONSOLIDATIONS; MERGERS. The Company shall not, directly or
indirectly, enter into any merger, consolidation or reorganization in which the
Company is not the surviving corporation unless the proposed surviving
corporation shall, prior to such merger, consolidation or reorganization, agree
in writing to assume the obligations of the Company under this Agreement, and
for that purpose references hereunder to "Registrable Securities" shall be
deemed to be references to the securities that the Investor or the Holders of
Registrable Securities would be entitled to receive in exchange for Registrable
Securities under any such merger, consolidation or reorganization.
ARTICLE III
MISCELLANEOUS
3.1. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Georgia, without regard to
conflicts of laws principles.
3.2. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.3. TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.4. NOTICES.
(a) All notices, requests, demands and other communications
under this Agreement or in connection herewith shall be given to or made to the
following addresses:
If to Company: Xata Corporation
000 Xxxx Xxxxx Xxxx, Xxx 00
Xxxxxxxxxx, XX 00000
ATTN: Xxxx X. Xxxxxx
With a copy to: Xxxx & Xxxxxxx, PA
4800 Xxxxx Fargo Center
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
ATTN: Xxxxx X. Xxxxxxxxx, Esq.
If to Investor: Xxxx Deere Special Technologies Group, Inc.
000 Xxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
ATTN: Xxxxx X. Xxxxxx
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With a copy to: Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
ATTN: Xxxxxxx X. Xxxxxxx, Esq.
(b) All notices, requests, demands and other communications
given or made in accordance with the provisions of this Agreement shall be in
writing and shall be deemed given when sent by facsimile, delivered by
nationally recognized overnight courier service, delivered personally or within
three days after mailing when mailed by certified or registered mail, return
receipt requested.
(c) Any party may, by written notice to the other, alter its
address or respondent.
3.5. AMENDMENTS AND WAIVERS. This Agreement may not be amended except
by a writing signing by both the Company and the Holders.
3.6. SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, portions of such provisions, or such
provisions in their entirety, to the extent necessary, shall be severed from
this Agreement, and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
3.7. DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of such
non-breaching party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of 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. Any waiver, permit, consent or approval of any kind or character on
the part of any party of any breach or default under this Agreement, or any
waiver on the part of any party of any provisions or conditions of this
Agreement, must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, or by law or otherwise afforded to any Holder, shall be cumulative
and not alternative.
3.8. ENTIRE AGREEMENT. This Agreement, the Stock Purchase Agreement and
the other documents delivered pursuant to the Stock Purchase Agreement
constitute the full and entire understanding and agreement among the parties
with regard to the subjects hereof and thereof.
3.9. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
COMPANY: INVESTOR:
Xata Corporation Xxxx Deere Special Technologies Group, Inc.
By: /s/ XXXXXXX X. FLIES By: /s/ Xxxxxxx X. Xxxxx, Xx.
--------------------------- ----------------------------------------
Title: CTO Xxxxxxx X. Xxxxx, Xx., President
