As
filed with the Securities and Exchange Commission on May 27, 2009
Registration
No. 333- 158776
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment
No. 1
to
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
XATA CORPORATION
(Exact name of registrant as specified in its charter)
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Minnesota
(State or other jurisdiction of
incorporation or organization)
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41-1641815
(I.R.S. Employer
Identification No.)
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965 Prairie Center Drive
Eden Prairie, MN 55344
Telephone: (952) 707-5600
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Mark E. Ties, Chief Financial Officer
XATA Corporation
965 Prairie Center Drive
Eden Prairie, MN 55344
Telephone: (952) 707-5600
Telefax: (952) 641-5848
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Michael K. Coddington
Faegre & Benson LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
Telephone: (612) 766-7328
Approximate date of commencement of proposed sale to the public:
From time to time, or at one
time, after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box.
o
If any of the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box.
þ
If this form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering.
o
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
o
If this form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.
o
If this form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box.
o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
þ
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Title of Each Class of Securities
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Amount to be
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Offering Price
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Aggregate
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Amount of
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to be Registered
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Registered (3)
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per Share (4)
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Offering Price (4)
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Registration Fee (5)
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Common Stock, par value $0.01 per share (1)
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1,355,857 shares
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$
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2.56
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$
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3,470,994
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$
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194
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Common Stock, par value $0.01 per share (2)
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406,759 shares
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$
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2.56
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$
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1,041,303
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$
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58
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(1)
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Issuable upon conversion of Series F Preferred Stock.
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(2)
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Issuable upon exercise of warrants issued to the holders of the Series F Preferred Stock.
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(3)
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Consists of shares of common stock issued or issuable upon the conversion of convertible
preferred stock and upon the exercise of warrants. Pursuant to Rule 416 under the Securities
Act of 1933, this registration statement also registers shares of common stock which may be
issued pursuant to the operation of certain anti-dilution provisions of the preferred stock
and warrants.
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(4)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c)
of the Securities Act, based on the average of the high and low sales prices of the
registrants common stock on the Nasdaq Capital Market on April 17, 2009.
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(5)
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Previously Paid.
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The Registrant hereby amends this Registration Statement on such date or dates as may be necessary
to delay its effective date until the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission acting pursuant to said section
8(a), may determine.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED MAY 27, 2009
XATA CORPORATION
1,762,616 SHARES OF COMMON STOCK
This prospectus relates to 1,762,616 shares of our common stock, which may be issued upon
exercise of convertible preferred stock and related warrants. Such common stock may be sold from
time to time by the selling shareholders named herein.
All of the proceeds from the sale of the shares covered by this prospectus will be received by
the selling shareholders. We will not receive any proceeds from the sale of these shares.
Our
common stock trades on the Nasdaq Capital Market under the symbol
XATA. On May 26,
2009, the closing price of our common stock was $3.70 per share.
Investing in our common stock involves risks. See Risk Factors beginning on page 2 of this
prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2009.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus may include or incorporate by reference forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933, including statements regarding our
expectations, hopes, beliefs, intentions or strategies regarding the future and may be identified
by the use of words (or the negative thereof) such as anticipate, assume, believe,
continue, could, estimate, expect, intend, may, plan, potential, project,
should, target, will and other words of similar import. These words indicate forward-looking
statements and are thus prospective. These statements reflect our current expectations regarding,
among other things, (i) our future profitability and liquidity, (ii) the benefits to be derived
from business strategy and (iii) other future developments in our business or the industry in which
we operate.
Forward-looking statements included or incorporated by reference into this prospectus may also
include statements relating to:
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our business development activities;
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sales and marketing efforts;
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the status of material contractual arrangements including the negotiation or
re-negotiation of such arrangements;
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future capital expenditures;
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the effects of regulation and competition on our business and future operating
performance; and
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the costs, timing, results, benefits and risks associated with our research,
development, and commercialization of new products.
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Investors are cautioned that any such forward-looking statements are not guarantees of future
performance and involve risks and uncertainties, and that actual results may differ materially from
those possible results discussed in the forward-looking statements as a result of various factors.
Consequently, you should regard forward-looking statements only as our current plans, estimates and
beliefs. All forward-looking statements and reasons why results may differ included in this
prospectus are made as of the date hereof, and we do not promise to notify you if we learn that our
assumptions or projections are wrong for any reason. Before you decide to invest in shares of
common stock you should be aware that various risks, including those described under the heading
Risk Factors below and under the heading Risk Factors in Part I, Item 1A of our Annual Report
on Form 10-K for the fiscal year ended September 30, 2008 (as amended, modified or supplemented in
any subsequent report that we file with the SEC), could cause our actual results to differ from
what we have stated in any forward-looking statements.
i
SUMMARY
The following summary contains basic information about us and this offering. It does not
contain all of the information that you should consider in making your investment decision. You
should read this entire prospectus, including the information set forth under the heading Risk
Factors and the financial data and related notes included or incorporated by reference herein,
before making an investment decision.
XATA Corporation
XATA Corporation, or XATA or the Company, is one of the leading providers of fleet management
solutions to the truck transportation industry. Our innovative technologies and value-added
services are intended to enable customers to optimize the utilization of their assets and enhance
the productivity of fleet operations across the entire supply chain, resulting in decreased costs,
improved compliance with government regulations, and enhanced customer service. We provide total
fleet management solutions, including hardware, software and services. Our primary sources of
revenue are our XATANET and MobileMax products.
XATANET is a software-as-a-service solution for which we receive monthly subscription fees,
and which performs the following functions: automation of regulatory driver log requirements and
state fuel tax reporting; comprehensive vehicle and driver performance reporting; real-time asset
tracking, route management, trip optimization and stop activity scheduling; mobile two-way
messaging and real-time vehicle location; and diagnostic and accident data capture.
MobileMax is a hosted solution whose revenue is derived from monthly per-truck communications
service fees, and which provides real-time communication and tracking capabilities, records
state-line crossings, monitors driver and vehicle performance and alerts companies of driver
arrival at or departure from geofenced locations.
We are incorporated under the laws of the State of Minnesota and our principal executive
offices are located at 965 Prairie Center Drive, Eden Prairie, Minnesota 55345. Our telephone
number is (952) 707-5600 and our website is
www.xata.com
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The Offering
Under this prospectus, the selling shareholders may, from time to time, sell shares of our
common stock in one or more offerings. See Plan of Distribution below.
1
RISK FACTORS
Investing in our common stock involves a high degree of risk. You should carefully consider
the risks described below, together with the other information contained or incorporated by
reference in this prospectus, including the statements under the heading Risk Factors in our
Annual Report on
Form 10-K
for the fiscal year ended September 30, 2008 (as amended, modified or
supplemented in any subsequent filing with the SEC), before making your decision to invest in
shares of our common stock.
The price of our common stock has been volatile and could continue to fluctuate in the future
.
From January 1, 2008 through March 31, 2009, the closing price of our common stock on the
Nasdaq Capital Market ranged from $1.52 to $3.95 per share. Our closing sale price on April 22,
2009 was $2.67 per share. Our stock price may fluctuate in response to a number of events and
factors, including but not limited to variations in operating results, litigation or governmental
proceedings, market perceptions of our financial reporting, changes in financial estimates and
recommendations by securities analysts, the operating and stock price performance of other
companies that investors may deem comparable to us, and news reports relating to trends in our
markets or general economic conditions.
We may issue additional stock without shareholder consent.
We have authorized 25,000,000 shares of common stock, of which 8,790,769 shares were issued
and outstanding as of March 31, 2009. The Board of Directors has authority, without action or vote
of the shareholders, to issue all or part of the authorized but unissued shares. Additional shares
may be issued in connection with future financings, acquisitions, employee stock plans, or
otherwise. Any such issuance will dilute the percentage ownership of existing shareholders. We are
also currently authorized to issue up to 10,000,000 shares of preferred stock. As of April 22,
2009, 1,964,429 shares of Series B Preferred Stock, 1,269,036 shares of Series C Preferred Stock,
1,566,580 shares of Series D Preferred Stock and 1,355,857 shares of Series F Preferred Stock were
issued and outstanding. Under our articles of incorporation, the Board of Directors can issue
additional preferred stock in one or more series and fix the terms of such stock without
shareholder approval. Preferred stock may include the right to vote as a series on particular
matters, preferences as to dividends and liquidation, conversion and redemption rights and sinking
fund provisions. The issuance of preferred stock could adversely affect the rights of the holders
of common stock and reduce the value of the common stock. In addition, specific rights granted to
holders of preferred stock could be used to restrict our ability to merge with or sell our assets
to a third party.
John Deere Special Technologies Group and Trident Capital, who are represented on our Board of
Directors, individually and together own enough stock to exert significant influence over XATA.
As of March 31, 2009, John Deere Special Technologies Group, Inc., or JDSTG, a subsidiary of
Deere & Company, owned approximately 11% and Trident Capital, Inc., or Trident, beneficially owned
approximately 37% of our common stock on an as-converted basis. In addition, JDSTG is entitled to
name up to three representatives to our Board of Directors and Trident is entitled to name up to
two representatives. Trident is entitled to vote its Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock and Series F Preferred Stock as if converted to common stock and to
vote as a separate class (to the exclusion of the holders of common stock) on the election of its
two director nominees. Both JDSTG and Trident benefit from certain restrictive covenants of XATA in
connection with their equity investments in the Company. The combination of stock ownership and
Board of Director representation enables these shareholders, both individually and together, to
exercise significant influence over the Company.
Future sale of shares of our common stock in the public market could depress our stock price and
make it difficult for you to recover the full value of your investment.
We cannot predict the effect, if any, that market sales of shares of common stock or the
availability of shares of common stock for sale will have on the market price of our common stock
prevailing from time to time. If our existing shareholders sell substantial amounts of our common
stock in the public market following this offering or if there is a perception that these sales may
occur, the market price of our common stock could decline.
The selling shareholders could sell large blocks of securities under this and our other
registration statements, which could cause the price of our common stock to decline.
Upon the effectiveness of this registration statement, the selling shareholders may sell their
securities in the public market through any means described in the section hereof entitled Plan of
Distribution. Sales of substantial amounts of our common stock, whether under this or another
registration statement, or the perception that those sales could occur may adversely affect the
market price of our common stock.
Several provisions of Minnesota corporate law could discourage, delay or prevent a merger or
acquisition, even in situations that may be viewed as desirable by our shareholders.
2
The Minnesota Business Corporation Act provides Minnesota corporations with anti-takeover
protections. These protective provisions could delay or prevent a change in control of our company
by, for example, requiring shareholder approval of significant acquisitions of our voting stock.
These provisions operate even when many shareholders may think a takeover would be in their best
interests.
USE OF PROCEEDS
We will not receive any proceeds from the sale of shares of common stock offered pursuant to
this prospectus by the selling shareholders. However, we may receive proceeds upon the cash
exercise of the warrants to purchase the common stock that may be offered pursuant to this
prospectus.
SELLING SHAREHOLDERS
The shares of common stock being offered by the selling shareholders represent shares that are
issuable upon conversion of preferred stock and exercise of warrants which were acquired by the
selling shareholders in 2009 in a negotiated private placement of such securities. We are
registering the shares so that the selling shareholders may offer the shares for resale from time
to time.
The table below lists the selling shareholders and other information regarding the beneficial
ownership of the common stock by each of the selling shareholders. The second column lists, for
each selling shareholder, the number of shares of common stock held by such shareholder or issuable
(pursuant to convertible securities, options or warrants) to such security holder within 60 days of
March 31, 2009. The fourth column lists the shares that may be offered by each selling shareholder
pursuant to this prospectus. The selling shareholders may sell all, some, or none of their shares
in this offering. The fifth and sixth columns shows the ownership of each selling shareholder after
the sale of all shares that may be offered by such shareholder pursuant to this prospectus. See
Plan of Distribution.
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Shares Beneficially
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Shares Beneficially
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Owned Prior to the
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Shares
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Owned After
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Name and Address
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Offering
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Being
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Offering
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of Selling Shareholder
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Shares
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Percent
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Offered
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Shares
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Percent
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Trident Capital Fund-V, L.P.
(1)
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6,237,339
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(2)
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41.5
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1,180,324
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(3)
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5,057,015
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(4)
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36.5
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Trident Capital Fund-V Affiliates Fund, L.P.
(1)
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36,251
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(2)
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*
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6,860
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(3)
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29,391
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(4)
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*
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Trident Capital Fund-V Affiliates Fund (Q), L.P.
(1)
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34,591
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(2)
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*
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6,547
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(3)
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27,220
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(4)
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*
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Trident Capital Fund-V Principals Fund, L.P.
(1)
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180,533
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(2)
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2.0
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34,163
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(3)
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142,068
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(4)
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1.6
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Trident Capital Parallel Fund-V, C.V.
(1)
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473,873
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(2)
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5.1
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89,674
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(3)
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384,199
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(4)
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4.2
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GW 2001 Fund, L.P.
(5)
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243,595
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(2)
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2.8
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117,117
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(3)
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126,478
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1.4
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Weber Capital Partners II, L.P.
(5)
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556,398
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(2)
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6.0
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292,793
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(3)
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263,605
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2.9
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John J. Coughlan
(6)
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788,278
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(7)
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8.7
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5,857
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(3)
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782,421
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8.2
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Mark E. Ties
(6)
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220,403
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(8)
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2.5
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5,857
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(3)
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214,546
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2.4
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David A. Gagne
(6)
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195,706
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(9)
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2.2
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2,928
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(3)
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192,778
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2.1
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Robert Maeser
(6)
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36,261
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(10)
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*
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2,928
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(3)
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33,333
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*
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Wesley C. Fredenburg
(6)
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50,901
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(11)
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*
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17,568
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(3)
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33,333
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*
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3
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(1)
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The address of all Trident entities is c/o Trident Capital, Inc., 505 Hamilton Avenue, Suite
200, Palo Alto, CA 94301. The Trident entities first acquired XATA securities in December 2003
(Series B Preferred Stock and Common Stock Warrants), and subsequently acquired additional
XATA securities in September 2005 (Series C Preferred Stock and Common Stock Warrants), June
2007 (Series D Preferred Stock and Common Stock Warrants), February 2009 (Series E Preferred
Stock and Common Stock Warrants) and April 2009 (Series F Preferred Stock, in exchange for the
Series E Preferred Stock). In connection with their initial investment, the Trident entities
obtained the right to appoint two persons to our Board of Directors. They currently have one
representative on our Board, Mr. Christopher P. Marshall, and retain the right to appoint a
second representative. Each of the Trident entities is managed by Trident Capital
Management-V, LLC, a Delaware limited liability company whose managing directors (Donald R.
Dixon, Bonnie N. Kennedy, Venetia Kontogouris, Robert C. McCormack, Sr., Peter T. Meekin and
John H. Moragne) exercise shared voting and investment direction over the XATA securities
owned by the Trident entities. Neither Mr. Marshall nor any of the Trident entities is a
registered broker dealer, and none of them is affiliated by ownership or control with a
registered broker dealer.
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(2)
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Consists of (i) shares of common stock, (ii) shares of common stock issuable upon conversion
of preferred stock and (iii) shares of common stock issuable upon exercise of warrants, as
follows:
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Series B
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Series C
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Series D
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Series F
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Convertible
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Convertible
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Convertible
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Convertible
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Common
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Common
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Preferred
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Preferred
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Preferred
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Preferred
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Stock
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Stock
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Stock
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Stock
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Stock
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Stock
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Warrants
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Trident Capital Fund-V, L.P.
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1,759,807
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1,136,849
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1,403,400
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907,942
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1,029,341
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Trident Capital Fund-V Affiliates Fund, L.P.
|
|
|
|
|
|
|
10,228
|
|
|
|
6,607
|
|
|
|
8,156
|
|
|
|
5,277
|
|
|
|
5,983
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Trident Capital Fund-V Affiliates Fund (Q),
L.P.
|
|
|
|
|
|
|
9,758
|
|
|
|
6,305
|
|
|
|
7,783
|
|
|
|
5,036
|
|
|
|
5,709
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Trident Capital Fund-V Principals Fund, L.P.
|
|
|
|
|
|
|
50,936
|
|
|
|
32,905
|
|
|
|
40,620
|
|
|
|
26,279
|
|
|
|
29,793
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Trident Capital Parallel Fund-V, C.V.
|
|
|
|
|
|
|
133,700
|
|
|
|
86,370
|
|
|
|
106,621
|
|
|
|
68,980
|
|
|
|
78,202
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
GW 2001 Fund, L.P.
|
|
|
126,478
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
90,090
|
|
|
|
27,027
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weber Capital Partners II, L.P.
|
|
|
132,993
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
225,225
|
|
|
|
198,180
|
|
|
|
|
|
(3)
|
|
Consists of common stock issuable upon conversion of Series F Convertible Preferred Stock and
exercise of related warrants.
|
|
(4)
|
|
Does not include shares (if any) to be issued upon conversion of Series B Preferred Stock
which may be issued (at the election of the holder) as payment in kind for dividends in lieu
of cash.
|
|
(5)
|
|
The address of these entities is c/o Weber Capital Management, LLC, 340 Pine St., Suite 300,
San Francisco, CA 94104. Each of these entities is managed by Weber Capital Management, LLC,
a Delaware limited liability company, whose Manager (Eugene M. Weber) exercises sole voting
and investment direction over the XATA securities owned by these entities.
|
|
(6)
|
|
Each of these individuals is an executive officer of XATA Corporation, and their address is
c/o XATA Corporation, 965 Prairie Center Drive, Eden Prairie, Minnesota 55345. Mr. Coughlan
is our Chairman, Chief Executive Officer and President. Mr. Ties is our Chief Financial
Officer and Treasurer. Mr. Gagne is our Executive Vice President of Field Operations. Mr.
Maeser is our Chief Technology Officer. Mr. Fredenburg is our General Counsel and Secretary.
|
|
(7)
|
|
Consists of 508,520 shares of common stock, 275,253 shares of common stock issuable upon
exercise of outstanding options and warrants, and 4,505 shares of common stock issuable upon
conversion of Series F Convertible Preferred Stock.
|
|
(8)
|
|
Consists of 63,466 shares of common stock, 152,432 shares of common stock issuable upon
exercise of outstanding options and warrants, and 4,505 shares of common stock issuable upon
conversion of Series F Convertible Preferred Stock.
|
4
|
|
|
(9)
|
|
Consists of 51,668 shares of common stock, 141,786 shares of common stock issuable upon
exercise of outstanding options and warrants, and 2,252 shares of common stock issuable upon
conversion of Series F Convertible Preferred Stock.
|
|
(10)
|
|
Consists of 33,333 shares of common stock, 676 shares of common stock issuable upon exercise
of outstanding options and warrants, and 2,252 shares of common stock issuable upon conversion
of Series F Convertible Preferred Stock.
|
|
(11)
|
|
Consists of 20,000 shares of common stock, 17,387 shares of common stock issuable upon
exercise of outstanding options and warrants, and 13,514 shares of common stock issuable upon
conversion of Series F Convertible Preferred Stock.
|
PLAN OF DISTRIBUTION
We are registering shares of common stock issuable upon conversion of preferred stock and
exercise of warrants to permit the resale of the shares from time to time after the date of this
prospectus. We will not receive any proceeds from the sale of shares of common stock offered
pursuant to this prospectus by the selling shareholders. However, we may receive proceeds upon the
cash exercise of the warrants to purchase the common stock that may be offered pursuant to this
prospectus. We will bear all fees and expenses incident to the registration of the shares of common
stock.
The selling shareholders have advised us that there are presently no underwriting arrangements
with respect to the sale of the shares; however, such arrangements may exist in the future. The
selling shareholders, or their pledges, donees, transfers or other successors in interest, may
choose to sell all or a portion of their common stock from time to time directly or through one or
more underwriters, broker-dealers or agents. If the common stock is sold through underwriters or
broker-dealers, the selling shareholder will be responsible for underwriting discounts or
commissions or agents commissions. The common stock may be sold in one or more transactions at
fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at
the time of sale, or at negotiated prices. These sales may be effected in transactions, which may
involve crosses or block transactions,
|
(1)
|
|
on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale,
|
|
|
(2)
|
|
in the over-the-counter market,
|
|
|
(3)
|
|
in transactions otherwise than on these exchanges or systems or in the over-the-counter market,
|
|
|
(4)
|
|
through the writing of options, whether such options are listed on an options exchange or otherwise, or
|
|
|
(5)
|
|
by any other legally available means.
|
If the selling shareholders effect such transactions by selling shares of common stock to or
through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may
receive commissions in the form of discounts, concessions or commissions from the selling
shareholders or commissions from purchasers of the shares of common stock for whom they may act as
agent or to whom they may sell as principal (which discounts, concessions or commissions as to
particular underwriters, broker-dealers or agents may be in excess of those customary in the types
of transactions involved). In connection with sales of the common stock or otherwise, the selling
shareholders may enter into hedging transactions with broker-dealers, which may in turn engage in
short sales of the common stock in the course of hedging in positions they assume. The selling
shareholders may also sell shares of common stock short and deliver shares of common stock covered
by this prospectus to close out short positions, provided that the short sale is made after the
registration statement is declared effective and a copy of this prospectus is delivered in
connection with the short sale. The selling shareholders may also loan or pledge shares of common
stock to broker-dealers that in turn may sell such shares.
The selling shareholders and any broker-dealer participating in the distribution of the shares
of common stock may be deemed to be underwriters within the meaning of the Securities Act, and
any commissions paid, or any discounts or concessions allowed to any such broker-dealer may be
deemed to be underwriting commissions or discounts under the Securities Act. At the time a
particular offering of the shares of common stock is made, a prospectus supplement, if required,
will be distributed which will set forth the aggregate amount of shares of common stock being
offered and the terms of the offering, including the name or names of any broker-dealers or agents,
any discounts, commissions and other terms constituting compensation from the selling shareholder
and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.
Under the securities laws of some states, the shares of common stock may be sold in such
states only through registered or licensed brokers or dealers. In addition, in some states the
shares of common stock may not be sold unless such shares have been
5
registered or qualified for sale in such state or an exemption from registration or
qualification is available and is complied with.
There can be no assurance that any selling shareholder will sell any or all of the shares of
common stock registered pursuant to the registration statement of which this prospectus forms a
part.
The selling shareholders and any other person participating in such distribution will be
subject to applicable provisions of the Exchange Act and the rules and regulations thereunder,
including, without limitation, Regulation M of the Exchange Act, which may limit the timing of
purchases and sales of any of the shares of common stock by the selling shareholders and any other
participating person. Regulation M may also restrict the ability of any person engaged in the
distribution of the shares of common stock to engage in market-making activities with respect to
the shares of common stock. All of the foregoing may affect the marketability of the shares of
common stock and the ability of any person or entity to engage in market-making activities with
respect to the shares of common stock.
We will pay all expenses of the registration of the shares of common stock estimated to be
approximately $30,252 in total, including, without limitation, Securities and Exchange
Commission filing fees, expenses of compliance with state securities or blue sky laws and
transfer agent fees relating to sales pursuant to this prospectus; provided, however, that the
selling shareholders will pay all underwriting discounts and selling commissions, if any.
Once sold under the registration statement of which this prospectus forms a part, the shares
of common stock will be freely tradable in the hands of persons other than our affiliates.
Eugene M. Weber, who exercises sole voting and investment direction over the XATA
securities held by two of the selling shareholders (GW 2001 Fund, L.P. and Weber
Capital Partners II, L.P.), is a registered representative of SJ Capital, Inc., a
broker dealer. The shares of common stock that such selling shareholders may sell pursuant to this registration statement are issuable upon the
conversion of preferred stock and the exercise of warrants that such selling shareholders purchased in the
ordinary course of business. At the time of such purchase of preferred stock and warrants, such
selling shareholders had no agreements or understandings, directly or indirectly, with any person
to distribute any shares of our stock.
LEGAL MATTERS
The validity of shares of common stock will be passed upon for us by Faegre & Benson LLP, 2200
Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402-3901.
EXPERTS
The consolidated financial statements and financial statement schedule as of September 30,
2008 and 2007 and for the years then ended incorporated in this prospectus and elsewhere in the
registration statement by reference to the Annual Report on Form 10-K for the year ended September
30, 2008 have been so incorporated by reference in reliance upon the report of Grant Thornton LLP,
independent registered public accountants, given on the authority of said firm as experts in
auditing and accounting in giving said report.
MATERIAL CHANGES
There have been no material changes in the financial condition of the Company since its Report
on Form 10-Q for the fiscal quarter ended December 31, 2008.
INDEMNIFICATION AND DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
XATAs amended and restated articles of incorporation (the Articles), limit personal
liability for breach of the fiduciary duty of its directors, to the fullest extent provided by the
Minnesota Business Corporation Act. The Articles eliminate the personal liability of directors for
damages occasioned by breach of fiduciary duty, except for liability based on the directors duty
of loyalty to XATA, liability for acts or omissions not made in good faith, liability for acts or
omissions involving intentional misconduct, liability based on payments of improper dividends,
liability based on violations of state securities laws, and liability occurring prior to the date
such provision was added. Any amendment to or repeal of these provisions will not be applied
retroactively to adversely affect any right or protection of a director with respect to any acts or
omissions occurring prior to the amendment or repeal.
The Minnesota Business Corporation Act and XATAs bylaws provide that officers and directors
of XATA have the right to indemnification from the Company for liability arising out of certain
actions to the fullest extent permissible by law. This indemnification may be available for
liabilities arising in connection with this offering. However, in the opinion of the Securities and
Exchange Commission, indemnification for liabilities arising under the Securities Act of 1933 is
against public policy as expressed in the Act and is therefore unenforceable.
6
In addition, we have entered into indemnification agreements with investment funds associated
with Trident Capital, Inc., collectively, Trident Capital, which funds are selling shareholders in
this offering, and the person designated as a director of the Company by Trident Capital. These
indemnification agreements are intended to hold them harmless from liability they may incur as a
controlling person, in the case of Trident Capital, and as a director, with respect to the
individual appointee. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant
to the provisions described under Part II, Item 15 of the registration statement of which this
prospectus is a part, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
CHANGE OF CONTROL
Section 302A.671 of the Minnesota Business Corporation Act (the Minnesota Act) applies, with
certain exceptions, to any acquisition of voting stock of XATA, including the receipt of a proxy,
from a person other than XATA, and other than in connection with certain mergers and exchanges to
which XATA is a party, that results in the beneficial ownership by the acquiring party of 20% or
more of the Companys voting stock then outstanding. Under Section 302A.671 any such acquisition
must be approved by a majority vote of XATAs shareholders. In general, in the absence of such
approval, shares exceeding the threshold are denied voting rights and may be redeemed by XATA at
their then fair market value within 30 days after the acquiring person fails to give a timely
information statement to the Company or after the date that shareholders vote not to grant voting
rights to the acquiring persons shares.
Section 302A.673 of the Minnesota Act generally prohibits any business combination by a
Minnesota company with any shareholder that purchases 10% or more of the companys voting shares
(an interested shareholder) within four years following the interested shareholders share
acquisition date, unless the business combination is approved by a committee of all of the
disinterested members of the Board of Directors of the company before the share acquisition.
These statutory provisions could delay or prevent a change in control of XATA.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the
Securities and Exchange Commission, or the Commission. You may read, or copy, any document we file
at the public reference room maintained by the Commission at 100 First Street NE, Washington, DC
20549. Copies of this information can be obtained by mail from the Commissions Public Reference
Branch at 100 First Street NE, Washington, DC 20549. In addition, our filings with the Commission
are also available to the public on the Commissions internet website at
www.sec.gov
.
We have filed with the Commission a registration statement on Form S-3 under the Securities
Act of 1933 with respect to the securities offered in this offering. This prospectus does not
contain all of the information set forth in the registration statement and its exhibits and
schedules. Statements made by us in this prospectus as to the contents of any contract, agreement
or other document referred to in this prospectus are not necessarily complete. For a more complete
description of these contracts, agreements or other documents, you should carefully read the
exhibits to the registration statement.
The registration statement, together with its exhibits and schedules, which we filed with the
Commission, may also be reviewed and copied at the public reference facilities of the Commission
located at the addresses set forth above. Please call the Commission at 1-800-SEC-0330 for further
information on its public reference facilities.
INCORPORATION BY REFERENCE
We incorporate by reference into this prospectus the information we file with the SEC, which
means that we can disclose important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus and information that
we file subsequently with the SEC will automatically update this prospectus. We incorporate by
reference the documents listed below, which we have filed with the SEC, and any filings we make
with the SEC under Sections 13(a),
7
13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended, after the initial
filing of the registration statement that contains this prospectus and prior to the effectiveness
of such registration statement and after the date of this prospectus and prior to the time that all
the securities offered by this prospectus are sold:
|
|
|
Our Annual Report on Form 10-K for the fiscal year ended September 30, 2008;
|
|
|
|
|
|
Our Quarterly Reports on Form 10-Q for the quarters ended
December 31, 2008 and March 31, 2009;
|
|
|
|
|
|
|
Our Current Reports on Form 8-K filed October 7, 2008, November 25, 2008,
December 17, 2008, December 19, 2008, February 2, 2009, February 9, 2009,
February 10, 2009, February 18, 2009, April 21,
2009 and May 11, 2009.
|
|
|
|
|
|
The description of our common stock, which is contained in our Registration
Statement on Form 8-A filed pursuant to Section 12 of the Exchange Act, as
declared effective by the SEC on December 20, 1995, and any description of
any of our securities which is contained in any registration statement
filed after the date hereof under Section 12 of the Exchange Act, including
any amendment or report filed for the purpose of updating any such
description.
|
You may request a copy of these filings (other than an exhibit to a filing unless that exhibit
is specifically incorporated by reference into that filing) at no cost, by writing to or
telephoning us at the following address:
Mark E. Ties
Chief Financial Officer
XATA Corporation
965 Prairie Center Drive
Eden Prairie, Minnesota 55345
Telephone: (952) 707-5600
You should rely only on the information incorporated by reference or presented in this
prospectus. We have not authorized anyone else to provide you with different information. We are
only offering these securities in states where the offer is permitted. You should not assume that
the information in this prospectus is accurate as of any date other than the date on the cover page
of this prospectus.
8
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14: Other Expenses of Issuance and Distribution
The following table sets forth an estimate of the costs and expenses, other than the
underwriting discounts and commissions, to be incurred in connection with the distribution of the
common stock being registered. All costs and expenses set forth below shall be borne by us. The
selling shareholders will pay their own underwriting discounts and commissions, if any.
|
|
|
|
|
|
|
Amount
|
|
Item
|
|
to be Paid
|
|
SEC registration fee
|
|
$
|
252
|
|
Legal fees and expenses
|
|
$
|
25,000
|
|
Accounting fees and expenses
|
|
$
|
5,000
|
|
|
|
|
|
Total
|
|
$
|
30,252
|
|
|
|
|
|
Item 15: Indemnification of Directors and Officers
Section 302A.521, subd. 2, of the Minnesota Statutes requires that we indemnify a person made
or threatened to be made a party to a proceeding by reason of the former or present official
capacity of the person with respect to the company, against judgments, penalties, fines, including,
without limitation, excise taxes assessed against the person with respect to an employee benefit
plan, settlements, and reasonable expenses, including attorneys fees and disbursements, incurred
by the person in connection with the proceeding with respect to the same acts or omissions if such
person (i) has not been indemnified by another organization or employee benefit plan for the same
judgments, penalties or fines, (ii) acted in good faith, (iii) received no improper personal
benefit, and statutory procedure has been followed in the case of any conflict of interest by a
director, (iv) in the case of a criminal proceeding, had no reasonable cause to believe the conduct
was unlawful, and (v) in the case of acts or omissions occurring in the persons performance in the
official capacity of director or, for a person not a director, in the official capacity of officer,
board committee member or employee, reasonably believed that the conduct was in the best interests
of the company, or, in the case of performance by a director, officer or employee of the company
involving service as a director, officer, partner, trustee, employee or agent of another
organization or employee benefit plan, reasonably believed that the conduct was not opposed to the
best interests of the company. In addition, Section 302A.521, subd. 3, requires payment by us, upon
written request, of reasonable expenses in advance of final disposition of the proceeding in
certain instances. Our bylaws provide for such indemnification to the maximum extent permitted by
Minnesota Statutes.
In addition, we have entered into indemnification agreements with investment funds associated
with Trident Capital, Inc., collectively, Trident Capital, which funds are selling shareholders in
this offering, and the person designated as director of the Company by Trident Capital which is
intended to hold them harmless from liability they may incur as a controlling person, in the case
of Trident Capital, and as a director, with respect to the individual appointee.
Item 16: Exhibits
|
|
|
Exhibit No.
|
|
Description of Document
|
|
|
|
3.1
|
|
Second Restated Articles of Incorporation, as amended (1)
|
3.2
|
|
Amended and Restated Bylaws (2)
|
4.1
|
|
Form of certificate representing the Common Stock (3)
|
4.2
|
|
Certificate of Designation of Preferences of Series B Preferred Stock (4)
|
4.3
|
|
Certificate of Designation of Preferences of Series C Preferred Stock (5)
|
4.4
|
|
Certificate of Designation of Preferences of Series D Preferred Stock (6)
|
4.5
|
|
Certificate of Designation of Preferences of Series F Preferred Stock (7)
|
4.6
|
|
Form of Warrant issued to investors in Series E Preferred Stock (7)
|
4.7
|
|
Investor Rights Agreement dated as of February 12, 2009 (7)
|
4.8
|
|
Common Stock Warrant and Series B Preferred Stock Purchase Agreement (4)
|
4.9
|
|
Common Stock Warrant and Series C Preferred Stock Purchase Agreement (5)
|
9
|
|
|
Exhibit No.
|
|
Description of Document
|
|
|
|
4.10
|
|
Common Stock Warrant and Series D Preferred Stock Purchase Agreement (6)
|
4.11
|
|
Common Stock Warrant and Series E Preferred Stock Purchase Agreement (7)
|
5.1
|
|
Opinion of Faegre & Benson LLP*
|
9.1
|
|
Amended and Restated Voting Agreement (5)
|
10.1
|
|
Trident Investor Indemnification Agreement (4)
|
10.2
|
|
Trident Director Indemnification Agreement (4)
|
23.1
|
|
Consent of Faegre & Benson LLP (included in Exhibit 5.1)*
|
23.2
|
|
Consent of Grant Thornton LLP *
|
|
24.1
|
|
Powers of attorney#
|
|
|
|
|
*
|
|
Filed herewith.
|
|
|
#
|
|
Previously filed.
|
|
|
(1)
|
|
Incorporated by reference to Exhibit 3.1 filed as part of Report on Form 10-K on
December 17, 2008 and Exhibits 3.1 and 3.3 filed as part of Report on Form 8-K on April 21,
2009.
|
|
(2)
|
|
Incorporated by reference to exhibit filed as part of Report on Form 8-K on February 10,
2009.
|
|
(3)
|
|
Incorporated by reference to exhibit filed as a part of Registration Statement on Form S-2
(Commission File No. 33-98932).
|
|
(4)
|
|
Incorporated by reference to exhibit filed as part of Report on Form 8-K on December 9,
2003.
|
|
(5)
|
|
Incorporated by reference to exhibit filed as part of Report on Form 8-K on September 22,
2005.
|
|
(6)
|
|
Incorporated by reference to exhibit filed as part of Report on Form 8-K on June 22, 2007.
|
|
(7)
|
|
Incorporated by reference to exhibit filed as part of Report on Form 8-K on February 18,
2009.
|
Item 17: Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information set forth in this
registration statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than a 20 percent change in
the maximum aggregate offering price set forth in the Calculation of Registration Fee table in
the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change to such information in
this registration statement;
provided, however,
that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Securities and Exchange Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser,
each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an
offering, other than registration statements relying on Rule 430B or other than prospectuses filed
in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement
as of the date it is first used after effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or made in any
such document immediately prior to such date of first use.
10
(5) That, for the purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(6) To deliver or cause to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3
under the Securities Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause
to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the prospectus to provide such interim financial
information.
(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
provisions described under Item 15 of this registration statement, or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act of 1933 and will be governed by
the final adjudication of such issue.
11
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, on May 27, 2009.
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XATA CORPORATION
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By:
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/s/ Mark E. Ties
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Name:
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Mark E. Ties
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Title:
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Chief Financial Officer
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Pursuant to the requirements of the Securities Act, this Registration Statement has been
signed by each of the following persons in the capacities indicated
on May 27, 2009.
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Name
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Title
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Chief Executive Officer, Chairman and Director
(Principal Executive Officer)
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/s/ Mark E. Ties
Mark E. Ties
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Chief Financial Officer
(Principal
Financial and Accounting Officer)
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Director
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Director
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Director
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Director
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/s/ *
Christopher P. Marshall
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Director
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Director
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Director
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*
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Mark E. Ties, by signing his name hereto, does hereby sign this document on behalf of each
of the above-named officers and/or directors of the Registrant pursuant to powers of attorney duly
executed by such persons.
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By
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/s/ Mark E. Ties
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Attorney-in Fact
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12
EXHIBIT INDEX
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Exhibit No.
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Description of Document
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3.1
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Second Restated Articles of Incorporation, as amended (1)
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3.2
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Amended and Restated Bylaws (2)
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4.1
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Form of certificate representing the Common Stock (3)
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4.2
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Certificate of Designation of Preferences of Series B Preferred Stock (4)
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4.3
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Certificate of Designation of Preferences of Series C Preferred Stock (5)
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4.4
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Certificate of Designation of Preferences of Series D Preferred Stock (6)
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4.5
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Certificate of Designation of Preferences of Series F Preferred Stock (7)
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4.6
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Form of Warrant issued to investors in Series E Preferred Stock (7)
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4.7
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Investor Rights Agreement dated as of February 12, 2009 (7)
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4.8
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Common Stock Warrant and Series B Preferred Stock Purchase Agreement (4)
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4.9
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Common Stock Warrant and Series C Preferred Stock Purchase Agreement (5)
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4.10
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Common Stock Warrant and Series D Preferred Stock Purchase Agreement (6)
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4.11
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Common Stock Warrant and Series E Preferred Stock Purchase Agreement (7)
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5.1
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Opinion of Faegre & Benson LLP*
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9.1
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Amended and Restated Voting Agreement (5)
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10.1
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Trident Investor Indemnification Agreement (4)
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10.2
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Trident Director Indemnification Agreement (4)
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23.1
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Consent of Faegre & Benson LLP (included in Exhibit 5.1)*
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23.2
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Consent of Grant Thornton LLP*
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24.1
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Powers of attorney#
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*
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Filed herewith.
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#
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Previously Field.
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(1)
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Incorporated by reference to Exhibit 3.1 filed as part of Report on Form 10-K on
December 17, 2008 and Exhibits 3.1 and 3.3 filed as part of Report on Form 8-K on April 21,
2009.
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(2)
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Incorporated by reference to exhibit filed as part of Report on Form 8-K on February 10,
2009.
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(3)
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Incorporated by reference to exhibit filed as a part of Registration Statement on Form S-2
(Commission File No. 33-98932).
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(4)
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Incorporated by reference to exhibit filed as part of Report on Form 8-K on December 9,
2003.
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(5)
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Incorporated by reference to exhibit filed as part of Report on Form 8-K on September 22,
2005.
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(6)
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Incorporated by reference to exhibit filed as part of Report on Form 8-K on June 22, 2007.
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(7)
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Incorporated by reference to exhibit filed as part of Report on Form 8-K on February 18,
2009.
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13
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