exv10w1



 





Exhibit 10.1




STOCK PURCHASE AGREEMENT




by and among




XATA CORPORATION,




GEOLOGIC SOLUTIONS, INC.




AND




THE STOCKHOLDERS OF GEOLOGIC SOLUTIONS, INC.




DATED AS OF DECEMBER 19, 2007




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE I DEFINITIONS	 	 	1	 
	 

	 	 	1.1	 	 	Definitions
	 	 	1	 
	 

	 	 	1.2	 	 	Interpretation
	 	 	10	 
	ARTICLE II PURCHASE AND SALE	 	 	10	 
	 

	 	 	2.1	 	 	Purchase of the Shares
	 	 	10	 
	 

	 	 	2.2	 	 	Purchase Price
	 	 	10	 
	 

	 	 	2.3	 	 	Payment of Purchase Price
	 	 	11	 
	 

	 	 	2.4	 	 	Purchase Price Adjustment
	 	 	11	 
	 

	 	 	2.5	 	 	Distribution of Subsidiary
	 	 	13	 
	 

	 	 	2.6	 	 	Transfer of Cash
	 	 	13	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY	 	 	13	 
	 

	 	 	3.1	 	 	Organization and Authorization
	 	 	13	 
	 

	 	 	3.2	 	 	Due Execution and Delivery; Binding Obligations
	 	 	14	 
	 

	 	 	3.3	 	 	Capitalization
	 	 	14	 
	 

	 	 	3.4	 	 	No Conflict or Violation
	 	 	14	 
	 

	 	 	3.5	 	 	Legal Proceedings, Orders and Judgments
	 	 	15	 
	 

	 	 	3.6	 	 	Compliance with Law
	 	 	15	 
	 

	 	 	3.7	 	 	Financial Statements
	 	 	15	 
	 

	 	 	3.8	 	 	Absence of Undisclosed Liabilities
	 	 	15	 
	 

	 	 	3.9	 	 	Absence of Changes
	 	 	16	 
	 

	 	 	3.10	 	 	Material Contracts
	 	 	17	 
	 

	 	 	3.11	 	 	Material Customers
	 	 	19	 
	 

	 	 	3.12	 	 	Real Property
	 	 	19	 
	 

	 	 	3.13	 	 	Tangible Property
	 	 	19	 
	 

	 	 	3.14	 	 	Taxes
	 	 	19	 
	 

	 	 	3.15	 	 	Permits
	 	 	21	 
	 

	 	 	3.16	 	 	Intellectual Property
	 	 	21	 
	 

	 	 	3.17	 	 	Employee Matters and Benefit Plans
	 	 	24	 
	 

	 	 	3.18	 	 	Environmental Matters
	 	 	26	 
	 

	 	 	3.19	 	 	Insurance
	 	 	26	 






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	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	3.20	 	 	Affiliate Transactions
	 	 	27	 
	 

	 	 	3.21	 	 	No Brokers or Finders
	 	 	27	 
	 

	 	 	3.22	 	 	Accounts Receivable
	 	 	27	 
	 

	 	 	3.23	 	 	Inventory
	 	 	27	 
	 

	 	 	3.24	 	 	Powers of Attorney
	 	 	27	 
	 

	 	 	3.25	 	 	Product Warranties
	 	 	27	 
	 

	 	 	3.26	 	 	Products Liability
	 	 	28	 
	 

	 	 	3.27	 	 	Material Suppliers
	 	 	28	 
	 

	 	 	3.28	 	 	Indebtedness
	 	 	28	 
	 

	 	 	3.29	 	 	Disclaimer of Additional and Implied Warranties
	 	 	28	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLERS	 	 	28	 
	 

	 	 	4.1	 	 	Organization and Authorization
	 	 	28	 
	 

	 	 	4.2	 	 	Due Execution and Delivery; Binding Obligations
	 	 	29	 
	 

	 	 	4.3	 	 	Title to Shares
	 	 	29	 
	 

	 	 	4.4	 	 	No Conflict or Violation
	 	 	29	 
	 

	 	 	4.5	 	 	Disclaimer of Additional and Implied Warranties
	 	 	29	 
	 

	 	 	4.6	 	 	Securities
	 	 	29	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASER	 	 	30	 
	 

	 	 	5.1	 	 	Organization and Authorization of Purchaser
	 	 	31	 
	 

	 	 	5.2	 	 	Due Execution and Delivery; Binding Obligations
	 	 	31	 
	 

	 	 	5.3	 	 	No Conflict or Violation
	 	 	31	 
	 

	 	 	5.4	 	 	No Brokers or Finders
	 	 	31	 
	 

	 	 	5.5	 	 	Funding
	 	 	31	 
	 

	 	 	5.6	 	 	Investment Intent
	 	 	31	 
	 

	 	 	5.7	 	 	Issuance of Shares of XATA Corporation Common Stock
	 	 	32	 
	 

	 	 	5.8	 	 	Financing
	 	 	32	 
	ARTICLE VI COVENANTS	 	 	32	 
	 

	 	 	6.1	 	 	Access to Information
	 	 	32	 
	 

	 	 	6.2	 	 	Conduct of the Business
	 	 	32	 
	 

	 	 	6.3	 	 	Regulatory and Other Authorizations; Consents; Permits
	 	 	34	 






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	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	6.4	 	 	Confidentiality
	 	 	34	 
	 

	 	 	6.5	 	 	Publicity
	 	 	35	 
	 

	 	 	6.6	 	 	Indemnification of Officers and Directors
	 	 	35	 
	 

	 	 	6.7	 	 	Tax Matters
	 	 	36	 
	 

	 	 	6.8	 	 	Further Assurances
	 	 	38	 
	 

	 	 	6.9	 	 	Post-Closing Maintenance of Records
	 	 	38	 
	 

	 	 	6.10	 	 	Employees and Employee Benefit Plans
	 	 	38	 
	 

	 	 	6.11	 	 	Updating of Schedules
	 	 	39	 
	 

	 	 	6.12	 	 	Covenant Not to Hire Employees
	 	 	39	 
	 

	 	 	6.13	 	 	Audit
	 	 	40	 
	 

	 	 	6.14	 	 	Severance Payment
	 	 	40	 
	 

	 	 	6.15	 	 	Subordination Agreements
	 	 	40	 
	 

	 	 	6.16	 	 	Earth Station License
	 	 	41	 
	 

	 	 	6.17	 	 	Financing
	 	 	42	 
	ARTICLE VII CONDITIONS PRECEDENT TO PURCHASER’S PERFORMANCE	 	 	43	 
	 

	 	 	7.1	 	 	Accuracy of Sellers’ and the Company’s
Representations and Warranties
	 	 	43	 
	 

	 	 	7.2	 	 	Performance of Sellers’ and the Company’s Covenants
	 	 	44	 
	 

	 	 	7.3	 	 	No Governmental Order or Adverse Law
	 	 	44	 
	 

	 	 	7.4	 	 	Deliverables
	 	 	44	 
	 

	 	 	7.5	 	 	Landlord Consents
	 	 	44	 
	 

	 	 	7.6	 	 	Escrow Agreements
	 	 	44	 
	 

	 	 	7.7	 	 	Earth Station License
	 	 	44	 
	 

	 	 	7.8	 	 	No Material Adverse Effect
	 	 	44	 
	 

	 	 	7.9	 	 	Financing
	 	 	45	 
	ARTICLE VIII CONDITIONS PRECEDENT TO SELLERS’ PERFORMANCE	 	 	44	 
	 

	 	 	8.1	 	 	Accuracy of Purchaser’s Representations and Warranties
	 	 	44	 
	 

	 	 	8.2	 	 	Performance of Purchaser’s Covenants
	 	 	45	 
	 

	 	 	8.3	 	 	No Governmental Order or Adverse Law
	 	 	45	 
	 

	 	 	8.4	 	 	Deliverables
	 	 	45	 
	 

	 	 	8.5	 	 	Escrow Agreements
	 	 	45	 






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	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	8.6	 	 	Subordination Agreements
	 	 	45	 
	ARTICLE IX TERMINATION PRIOR TO CLOSING	 	 	45	 
	 

	 	 	9.1	 	 	Termination
	 	 	45	 
	 

	 	 	9.2	 	 	Effect on Obligations
	 	 	46	 
	ARTICLE X THE CLOSING	 	 	46	 
	 

	 	 	10.1	 	 	Closing
	 	 	46	 
	 

	 	 	10.2	 	 	Sellers’ Obligations
	 	 	46	 
	 

	 	 	10.3	 	 	Purchaser’s Obligations
	 	 	47	 
	 

	 	 	10.4	 	 	The Company’s Obligations
	 	 	47	 
	ARTICLE XI INDEMNIFICATION	 	 	47	 
	 

	 	 	11.1	 	 	Survival of Representations and Warranties
	 	 	47	 
	 

	 	 	11.2	 	 	Indemnification Obligations
	 	 	48	 
	 

	 	 	11.3	 	 	Mitigation
	 	 	51	 
	 

	 	 	11.4	 	 	Exclusive Remedy
	 	 	51	 
	 

	 	 	11.5	 	 	Damages
	 	 	51	 
	 

	 	 	11.6	 	 	No Double Recovery
	 	 	52	 
	 

	 	 	11.7	 	 	Effect of Knowledge
	 	 	52	 
	 

	 	 	11.8	 	 	Adjustments to Purchase Price
	 	 	52	 
	 

	 	 	11.9	 	 	Escrow
	 	 	52	 
	 

	 	 	11.10	 	 	Offset Against Seller Notes
	 	 	52	 
	ARTICLE XII MISCELLANEOUS PROVISIONS	 	 	53	 
	 

	 	 	12.1	 	 	Fees and Expenses
	 	 	53	 
	 

	 	 	12.2	 	 	Notices
	 	 	53	 
	 

	 	 	12.3	 	 	Schedules
	 	 	54	 
	 

	 	 	12.4	 	 	Entire Agreement
	 	 	55	 
	 

	 	 	12.5	 	 	Governing Law
	 	 	55	 
	 

	 	 	12.6	 	 	Waiver and Amendment
	 	 	55	 
	 

	 	 	12.7	 	 	Assignment
	 	 	55	 
	 

	 	 	12.8	 	 	Successors and Assigns
	 	 	55	 
	 

	 	 	12.9	 	 	No Third Party Beneficiaries
	 	 	55	 






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	 	 	12.10	 	 	No Personal Liability
	 	 	56	 
	 

	 	 	12.11	 	 	Severability
	 	 	56	 
	 

	 	 	12.12	 	 	No Presumption
	 	 	56	 
	 

	 	 	12.13	 	 	Counterparts
	 	 	56	 
	 

	 	 	12.14	 	 	Facsimile Signatures
	 	 	56	 
	 

	 	 	12.15	 	 	Waiver of Jury Trial
	 	 	56	 







v











 





STOCK PURCHASE AGREEMENT




     This STOCK PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of
December 19, 2007 by and among XATA Corporation, a Minnesota corporation (“Purchaser”),
GeoLogic Solutions, Inc., a Delaware corporation (the “Company”), the stockholders of the
Company listed on Schedule A attached hereto (“Sellers”), and for purposes of
Section 6.16 and Sections 11 and 12, GeoLogic Management, Inc., a Delaware corporation and wholly
owned subsidiary of the Company (the “FCC SPE”).



RECITALS




     A. Sellers own all of the issued and outstanding capital stock (the “Shares”) of the
Company.



     B. Sellers desire to sell the Shares to Purchaser, and Purchaser desires to purchase the
Shares from Sellers, in each case on the terms and subject to the conditions set forth in this
Agreement.



AGREEMENT




     NOW, THEREFORE, in consideration of the foregoing recitals and the respective covenants,
agreements, representations and warranties contained herein, the parties, intending to be legally
bound, agree as follows:



ARTICLE I

DEFINITIONS




     1.1 Definitions. The following capitalized terms used herein shall have the meanings
indicated:



     “Acceptance Notice” has the meaning set forth in Section 2.4.



     “Accounts Receivable” has the meaning set forth in Section 3.22.



     “Acquisition Date” means September 17, 2004.



     “Action” means any action, claim, suit, litigation, arbitration, mediation or other
proceeding by or before any Governmental Authority.



     “Affected Employees” has the meaning set forth in Section 6.10(a).



     “Affiliate” means, with respect to any Person, any other Person that, directly or
indirectly, through one or more intermediaries, controls, or is controlled by, or is under common
control with such Person. For purposes of this definition, “control” means, with respect to any
Person, the possession, directly or indirectly, of the power to direct or cause the direction of
the management or policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.



 









 





     “Agreement” has the meaning given to such term in the preamble hereto.



     “Ancillary Documents” means, with respect to a Person, any document executed and
delivered by or on behalf of such Person, in connection with the execution and delivery of this
Agreement or Closing, pursuant to the terms of this Agreement (but not including this Agreement).



     “Audit Escrow Agreement” means that certain Audit Escrow Agreement in the form
attached hereto in Exhibit 1.1(a).



     “Audit Escrow Amount” has the meaning given to such term in Section 2.3(e).



     “Audit Payments” has the meaning given to such term in Section 6.13.



     “Audited Financial Statements” has the meaning given to such term in Section
3.7.



     “Cash” of the Company means the cash and cash equivalents of the Company determined in
accordance with GAAP, as applied and interpreted by the Company consistent with past practice.



     “Closing” has the meaning given to such term in Section 10.1.



     “Closing Balance Sheet” has the meaning given to such term in Section 2.4.



     “Closing Date” has the meaning given to such term in Section 10.1.



     “Code” means the Internal Revenue Code of 1986, as amended, and rules and regulations
promulgated thereunder.



     “Company” has the meaning given to such term in the preamble hereto.



     “Company Accounting Policies” means the internal policies used to prepare the
Financial Statements as set forth on Exhibit A hereto. 



     “Company Benefit Plan” means (i) any “employee welfare benefit plan,” as defined in
Section 3(l) of ERISA, (ii) any “employee pension benefit plan,” as defined in Section 3(2) of
ERISA, (iii) any “multi-employer plan,” as defined in Section 4001(a)(3) of ERISA, and (iv) any
other employee benefit plan, fund, program, or arrangement, in each case, (A) that is sponsored or
maintained by the Company or to which the Company makes or has an obligation to make contributions
and (B) which provides or at any time provided benefits to current or former employees of the
Company or the dependents of any such employees.



     “Company IP” means all Intellectual Property owned by or filed in the name of the
Company.



     “Company Product” means a product (other than a Company Software Product) as sold or
offered for sale by the Company to a customer prior to the Closing.



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     “Company Service” means a service as sold, offered for sale or provided by the Company
to a customer prior to the Closing.



     “Company Software Product” means an object code software product whether included in
or with a Company Product or separately provided by the Company to a customer as offered for
license, licensed or sublicensed by the Company to a customer prior to the Closing.



     “Contracts” means all contracts, licenses, Leases, and other agreements (written or
oral), to which the Company is a party or by which the Company is bound.



     “Controlled Portfolio Company” means a company (i) in which a Seller has a controlling
interest and (ii) that competes with the business of the Company as conducted on the Closing Date.



     “Damages” means any loss, liability, damage or reasonable expense incurred as a result
thereof, including, without limitation, reasonable attorneys’, accountants’ and experts’ fees.



     “Disclosure Schedule” has the meaning given to such term in the preamble to
Article III.



     “Disclosure Supplement” has the meaning given to such term in Section 6.11.



     “Dispute Notice” has the meaning set forth in Section 2.4.



     “Documentation” means documentation, specifications, manuals and other user
instructional materials related to Company Products, Company Software Products, Company Services
and Owned Data Bases.



     “Earth Station” shall mean the Company equipment that as of the date hereof uses the
Earth Station License.



     “Earth Station License” means that certain license (Call Sign E900081) issued to the
Company by the FCC pursuant to which the Company is authorized to operate 50,100 half-duplex mobile
earth terminals in the lower L-band via the AMSC-1 and MSAT-1 satellites.



     “Earth Station Management Agreement” means that certain Earth Station Management
Agreement by and between the Company, FCC SPE, and the Sellers, in the form attached hereto in
Exhibit 1.1(d).



     “Employee” means any employee of the Company immediately prior to the Closing.



     “Encumbrance” means any mortgage, lien, pledge, charge, security interest,
encumbrance, or restriction.



     “Environmental Laws” means all federal, state, local and foreign statutes,
regulations, ordinances and similar provisions having the force or effect of law, all judicial and



-3-









 




administrative orders and determinations, all contractual obligations and all common law
concerning public health and safety, worker health and safety, and pollution or protection of the
environment, including without limitation all those relating to the presence, use, production,
generation, handling, transportation, treatment, storage, disposal, distribution, labeling,
testing, processing, discharge, release, threatened release, control, or cleanup of any hazardous
materials, substances or wastes, chemical substances or mixtures, pesticides, pollutants,
contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated
biphenyls or radiation, as such of the foregoing are enacted or in effect, prior to the Closing
Date.




     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.



     “ERISA Affiliate” means any Person (whether incorporated or unincorporated) that
together with the Company would be deemed a “single employer” within the meaning of Section 414 of
the Code.



     “ERISA Affiliate Plan” means (i) any “group health plan,” as defined in Section
5000(b)(1) of the Code, (ii) any “employee pension benefit plan,” as defined in Section 3(2) of
ERISA that is subject to Title IV of ERISA, and (iii) any “multi-employer plan,” as defined in
Section 4001(a)(3) of ERISA, sponsored or maintained at any time by any ERISA Affiliate, or to
which such ERISA Affiliate makes or has made, or has or has had an obligation to make,
contributions at any time.



     “Escrow Agreements” means the Audit Escrow Agreement, the Indemnification Escrow
Agreement, and the Severance Escrow Agreement.



     “Escrow Agent” shall have the meaning set forth in Section 7.7.



     “Escrowed XATA Shares” shall have the meaning set forth in Section 2.3(b).



     “Estimated Working Capital” shall have the meaning set forth in Section
2.3(f).



     “FCC” means the Federal Communications Commission.



     “FCC Application” means an application requesting FCC consent to the assignment of the
Earth Station License from the FCC SPE to the Company.



     “FCC Consent” means an action by the FCC (including acting taken by the FCC’s staff
pursuant to delegated authority) granting its initial consent to the FCC Application.



     “FCC SPE” has the meaning given such term in Section 6.16.



     “Final Net Working Capital” means the Net Working Capital on the Closing Date as
determined pursuant to Section 2.4.



     “Final Order” shall mean an action by the FCC or other regulatory authority having
jurisdiction (i) with respect to which action no timely request for stay, motion or petition for
reconsideration or rehearing, application or request for review or notice of appeal or other



-4-









 




judicial petition for review is pending and (ii) as to which the time for filing any such
request, motion, petition, application, appeal or notice and for the entry of orders staying,
reconsidering or reviewing on the FCC’s or such other regulatory authority’s own motion has
expired.




     “Financial Statements” has the meaning given to such term in Section 3.7.



     “GAAP” means generally accepted accounting principles as in effect in the United
States from time to time.



     “Governmental Authority” means (i) any nation, state, county, city or other legal
jurisdiction, (ii) any federal, state, local, municipal, foreign or other government, (iii) any
governmental or quasi-governmental authority of any nature or (iv) any body exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to government.



     “Hazardous Substance” means any solid, liquid or gaseous substance, chemical,
compound, product, byproduct, waste, pollutant, contaminant or material, including, without
limitation, asbestos in friable form, urea formaldehyde, polychlorinated biphenyls and petroleum
and its refined products, that is subject to regulation, control or remediation by any applicable
Governmental Authority or by any Environmental Law.



     “Holdback Amount” has the meaning set forth in Section 2.3(f).



     “Indebtedness” means, without duplication, (i) any indebtedness of the Company for
borrowed money, (ii) any indebtedness of the Company evidenced by a note, bond or debenture and
(iii) any interest, principal, prepayment penalties, fees or expenses to the extent paid in respect
of those items listed in the foregoing clauses (i) and (ii).



     “Indemnification Escrow Agreement” means that certain Indemnification Escrow Agreement
in the form attached hereto in Exhibit 1.1(b).



     “Indemnification Escrow Amount” has the meaning set forth in Section 2.3(c).



     “Indemnified Party” means a Purchaser Indemnified Party, a Seller Indemnified Party or
a Seller and FCC SPE Indemnified Party, as the case may be.



     “Indemnifying Party” means a party that is required to indemnify any Indemnified Party
pursuant to Article XI.



     “Independent Auditor” has the meaning set forth in Section 2.4.



     “Intellectual Property” means all of the following intellectual property rights owned
by and used in the business of the Company prior to the Closing: (i) patents, patent applications
and patent disclosures as well as any reissues, continuations, continuations-in-part, divisions,
extensions or reexaminations thereof; (ii) trademark rights, service mark rights and rights to
trade names and internet domain names, and registrations and applications for registration thereof;
(iii) copyrights and registrations and applications for registration thereof;



-5-









 




(iv) trade secret rights and rights to confidential or proprietary information, and (v) other
intellectual property rights.




     “IT Assets” means all of the computer software, computer firmware, computer hardware
and related network hardware, software and communications devices (whether general or specific
purpose), and other similar or related items of automated, computerized, and/or software systems
that are operated by the Company in the conduct of its business prior to the Closing.



     “Key Employee” means John Lewis, Jeff Sim, Craig Malone, Tom Cuthbertson, Mark Spicer
or Luther (“Chip”) Powell.



     “Knowledge of the Company” means the actual knowledge of John Lewis, Jeff Sim, Craig
Malone, Tom Cuthbertson, Mark Spicer, Luther (“Chip”) Powell, Sean Dorney, Eva Kalawski, Steve
Zollo, Matthias Heilmann, Renee Koontz and Todd Golditch; provided that for purposes of Section
3.11, Knowledge of the Company shall also include Frank Lancaster, Scot Nair, Pat Sharkey and
Mike Szymanski .



     “Laws” means all laws of any country or any political subdivision thereof, including,
without limitation, all federal, state and local statutes, regulations, ordinances, orders or
decrees or any other laws, common law theories or reported decisions of any court thereof.



     “Leases” means all leases, subleases, licenses and other lease agreements, together
with all amendments, supplements and nondisturbance agreements pertaining thereto, under which the
Company leases, subleases, licenses or uses any real property.



     “License Alternative” has the meaning given to such term in Section 6.16.



     “Material Adverse Effect” means any condition, change, effect or circumstance that,
individually or when taken together with all such conditions, changes effects or circumstances has
or could reasonably be expected to have a material adverse effect on the operations, financial
condition, business, assets or liabilities of the Company, other than any such effect resulting
from (i) changes in the United States economy in general, (ii) changes generally affecting the
industries in which the Company operates its business, (iii) financial, banking, or securities
markets (including any disruption thereof and any decline in the price of any security or any
market index), (iv) the outbreak or escalation of hostilities, war or acts of terrorism, or (v) the
announcement of this Agreement or any transactions contemplated hereunder, the fulfillment of the
parties’ obligations hereunder or the consummation of the transactions contemplated by this
Agreement, provided that with respect to clauses (i) through (v), the changes or conditions do not
have a materially disproportionate effect (relative to other participants in such industries).



     “Material Contract” has the meaning given to such term in Section 3.10(a).



     “Material Customer” has the meaning given to such term in Section 3.11.



     “Most Recent Financial Statements” has the meaning given to such term in Section
3.7.



-6-









 





     “Necessary IP Rights” shall have the meaning ascribed in Section 3.16(a).



     “Net Working Capital” means as specifically listed on Exhibit A (i) certain
current assets of the Company less (ii) certain current liabilities of the Company, all as
determined in accordance with GAAP consistently applied and calculated on a consistent basis with
the Company Accounting Policies; provided that (1) no effect shall be given to the transactions
contemplated hereby, and (2) Tax assets and deferred Tax liabilities, other than Working Capital
Taxes, shall be excluded from current assets and current liabilities.



     “Organizational Documents” means, with respect to a limited partnership or limited
liability company, the partnership or operating agreement of such entity and, with respect to a
corporation, the certificate or articles of incorporation and the bylaws of such corporation, in
each case as amended through the date hereof.



     “Owned Data Bases” shall have the meaning ascribed in Section 3.16(n).



     “Per Share Price” means the lesser of either (i) $3.50 per share or (ii) the average
closing price of XATA Corporation common stock on the NASDAQ Stock Market for the five trading days
preceding the Closing Date.



     “Permits” means all franchises, permits, licenses, qualifications, municipal and other
authorizations, orders and other rights from, and filings with, any Governmental Authority.



     “Permitted Encumbrances” means (i) statutory liens for Taxes and other charges and
assessments by any Governmental Authority that are not yet due and payable or are being contested
in good faith, (ii) mechanics’, materialmen’s, and similar liens arising or incurred in the
ordinary course of business of the Company that can be satisfied by a payment of cash to the
lienholders, (iii) rights reserved to any Governmental Authority to regulate the affected assets,
including zoning Laws and ordinances, (iv) as to real property interests, including leasehold
interests, any easements, rights-of-way, servitudes, permits, restrictions, and minor imperfections
or irregularities in title that do not, individually or in the aggregate, interfere with the
ability to own, use, or operate such real property, (v) purchase money liens and liens securing
rental payments under any capital lease arrangements shown in the Financial Statements, (vi) notice
filings with respect to equipment leases or other leases of personal property, and (vii) any other
Encumbrance that is immaterial with respect to the asset that it encumbers.



     “Person” means any individual, any entity or any unincorporated organization,
including a partnership, a corporation, a limited liability company, an association, a joint stock
company, a trust, or a joint venture.



     “Pre-Closing Products” means any product or service offered by the Company prior to
the Closing Date.



     “Pre-Closing Statement” has the meaning set forth in Section 2.3(f).



     “Pre-Closing Severance Payments” has the meaning set forth in Section 6.14.



     “Pre-Closing Tax Period” has the meaning given to such term in Section 6.7(a).



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     “Publicly Available Software” shall have the meaning ascribed in Section
3.16(i).



     “Purchase Price” has the meaning given to such term in Section 2.2.



     “Purchaser” has the meaning given to such term in the preamble hereto.



     “Purchaser Indemnified Parties” has the meaning given to such term in Section
11.2(a).



     “Purchaser’s Statement” has the meaning set forth in Section 2.4.



     “Records” has the meaning set forth in Section 6.9.



     “Registered IP” means all unexpired U.S., international and foreign (i) patents and
patent applications (including provisional applications and design patents and applications) and
all reissues, divisions, divisionals, renewals, extensions, counterparts, continuations and
continuations-in-part applications thereof, and all patents, applications, and filings claiming
priority thereto or serving as a basis for priority thereof, (ii) registered trademarks, service
marks, applications to register trademarks, applications to register service marks, intent-to-use
applications, or other registrations or applications related to trademarks, (iii) registered
copyrights and applications for copyright registration, (iv) domain name registrations and Internet
URL number assignments, and (v) other intellectual property rights that are the subject of an
application, certificate, filing, registration or other document filed or recorded with, or issued
by any governmental agency, in the case of each of clauses (i)-(v) above, owned by, under
obligation of assignment to, or filed in the name of, the Company and used by the Company in the
conduct of its business as presently conducted.



     “Representative” of a party means any officer, director, employee, principal, member,
shareholder or partner of such party or any attorney, accountant or advisor to such party.



     “Review Period” has the meaning set forth in Section 2.4.



     “Rule 144” has the meaning set forth in Section 4.6(c).



     “Securities” means the Escrowed XATA Shares, the shares of common stock of XATA
Corporation into which the Seller Convertible Notes are convertible, the Seller Convertible Notes,
and the Seller Notes.



     “Seller and FCC SPE Indemnified Parties” has the meaning given to such term in
Section 11.2(b).



     “Seller Convertible Notes” means those certain Promissory Notes made by Purchaser in
favor of each of the Sellers in the aggregate principal amount equal to $525,000.



     “Seller Indemnified Parties” has the meaning given to such term in Section
11.2(b).



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     “Seller Notes” means those certain Promissory Notes made by Purchaser in favor of each
of the Sellers in the aggregate principal amount equal to $1,475,000.



     “Sellers” has the meaning given to such term in the preamble hereto and
“Seller” means any of the Sellers.



     “Sellers’ Severance Escrow Amount” has the meaning set forth in Section 6.14.



     “Severance Escrow Agreement” means that certain Severance Escrow Agreement in the form
attached hereto in Exhibit 1.1(c).



     “Severance Escrow Amount” has the meaning set forth in Section 2.3(d).



     “Severance Period” has the meaning set forth in Section 6.14. 



     “Shares” has the meaning given to such term in Recital A of this Agreement.



     “Specified Representations” has the meaning given to such term in Section
11.1.



     “Subsidiary” means Logo Acquisition Corporation, a Delaware corporation and a wholly
owned subsidiary of the Company.



     “Target Amount” shall mean $1,100,000.00.



     “Tax(es)” means all taxes, charges, fees, levies, duties, imposts or other assessments
or charges imposed by and required to be paid to any federal, state, local or foreign taxing
authority, including, without limitation, income, excise, property (whether real or tangible
personal property), sales, use, transfer, gains, ad valorem, value added, stamp, payroll, windfall,
profits, gross receipts, license, occupation, commercial activity, employment, withholding, social
security, workers’ compensation, unemployment compensation, capital stock and franchise taxes,
alternative or add-on minimum (including any interest, penalties or additions attributable to or
imposed on or with respect to any such assessment) and any estimated payments or estimated taxes.



     “Tax Return” means any return, report, information return or other similar document or
statement (including any related or supporting information) filed or required to be filed with any
Governmental Authority in connection with the determination, assessment or collection of any Tax or
the administration of any Laws, regulations or administrative requirements relating to any Tax,
including, without limitation, any information return, claim for refund, amended return or
declaration of estimated Tax and all federal, state, local and foreign returns, reports and similar
statements.



     “Third Party Reimbursement” has the meaning given to such term in Section
11.3.



     “Working Capital Taxes” means state sales, use, property and business Taxes,
(including excise and franchise Taxes), but excluding state or federal income Taxes incurred by the
Company in the ordinary course of business and consistent with past practice (including by type and
amount) that are not due and payable as of the Closing Date.



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     1.2 Interpretation. In this Agreement, unless otherwise specified or where the
context otherwise requires:



          (a) language shall be construed simply according to its fair meaning and not strictly for or
against any party;




          (b) the headings of particular provisions of this Agreement are inserted for convenience only
and will not be construed as a part of this Agreement or serve as a limitation or expansion on the
scope of any term or provision of this Agreement;




          (c) words importing any gender shall include other genders;




          (d) words importing the singular only shall include the plural and vice versa;




          (e) the words “include,” “includes” or “including” shall be deemed to be followed by the words
“without limitation;”




          (f) the words “hereby,” “hereof,” “herein” and “herewith” and words of similar import shall,
unless otherwise stated, be construed to refer to this Agreement as a whole and not to any
particular provision of this Agreement;




          (g) references to “Article,” “Section” or “Schedule” shall be to an Article, Section or
Schedule of or to this Agreement;




          (h) references to any Person include the successors and permitted assigns of such Person;




          (i) any definition of or reference to any Law, agreement, instrument or other document herein
will be construed as referring to such Law, agreement, instrument or other document as from time to
time amended, supplemented or otherwise modified; and




          (j) any definition of or reference to any statute will be construed as referring also to any
rules and regulations promulgated thereunder.




ARTICLE II

PURCHASE AND SALE




     2.1 Purchase of the Shares. On the terms and subject to the conditions of this
Agreement, at the Closing, each Seller shall sell, assign and deliver the number of Shares set
forth opposite such Seller’s name on Schedule A attached hereto to Purchaser, and Purchaser
shall purchase and acquire such Shares from such Seller.



     2.2 Purchase Price. The aggregate purchase price for the Shares (the “Purchase
Price”) shall be equal to seventeen million five hundred thousand dollars ($17,500,000),
subject to adjustment pursuant to Section 2.4.



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     2.3 Payment of Purchase Price. The Purchase Price shall be paid at Closing as
follows:



          (a) Purchaser shall, on behalf of the Company, pay all outstanding Indebtedness in accordance
with the payoff letters to be delivered at Closing pursuant to Section 10.4; and




          (b) Purchaser will issue to the Sellers the Seller Notes in the aggregate principal amount of
$1,475,000 and the Seller Convertible Notes in the aggregate principal amount of $525,000;




          (c) Purchaser will deposit into escrow with the Escrow Agent an aggregate amount equal to
$300,000 (the “Indemnification Escrow Amount”) all of which shall be made up of shares of
common stock of XATA Corporation in an amount equal to (i) $300,000 divided by (ii) the Per Share
Price (the “Escrowed XATA Shares”), to be held by the Escrow Agent pursuant to the terms of
the Indemnification Escrow Agreement;




          (d) Purchaser will deposit into escrow with the Escrow Agent an aggregate amount equal to
$673,000 (the “Severance Escrow Amount”) to be held by the Escrow Agent pursuant to the
terms of the Severance Escrow Agreement;




          (e) Purchaser will deposit into escrow with the Escrow Agent an aggregate amount equal to
$150,000 (the “Audit Escrow Amount”) to be held by the Escrow Agent pursuant to the terms
of the Audit Escrow Agreement;




          (f) Two business days prior to Closing Date, Sellers shall deliver to Purchaser a pre-closing
statement (the “Pre-Closing Statement”) setting forth Sellers reasonable calculation,
prepared in accordance with the Company’s accounting policies and practices and in accordance with
GAAP of the estimated Net Working Capital of the Company on the Closing Date (the “Estimated
Working Capital”). If Estimated Working Capital is less than $850,000, then the Purchaser will
retain from the Purchase Price an amount (the “Holdback Amount”) equal to (i) the Target
Amount minus (ii) the Estimated Working Capital; and




          (g) An amount equal to the Purchase Price less the payments made under Sections 2.3(a)
through 2.3(f) shall be allocated among Sellers pro rata in accordance with the number of
Shares being sold and shall be paid by Purchaser to each Seller at the Closing by wire transfer of
immediately available funds to such account as Sellers may designate in writing prior to the
Closing.




     2.4 Purchase Price Adjustment.



          (a) Closing Balance Sheet and Purchaser’s Statement. No later than sixty (60) days
following the Closing Date, the Purchaser shall prepare and deliver to the Sellers a balance sheet
as of the close of business on the Closing Date (the “Closing Balance Sheet”) and a
statement of the Net Working Capital as of the close of business on the Closing Date
(“Purchaser’s Statement”), which shall be prepared in accordance with GAAP, consistently
applied and consistent with the methodologies and principles used in the preparation of the Audited
Financial Statements, together with reasonable backup documentation to support the line




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items included therein. The Sellers shall have a period of sixty (60) days from the receipt
of Purchaser’s Statement (the “Review Period”) to review the Purchaser’s Statement. During
the Review Period, the Purchaser shall cause its employees and accountants who were involved in the
preparation of the Purchaser’s Statement to provide promptly to Sellers and their employees and
accountants full access to the financial books and records used in the preparation of the
Purchaser’s Statement including all working papers of Purchaser and its accountants, including
without limitation, all back-up documentation to support the line items included in the Closing
Balance Sheet and the Purchaser’s Statement. If as a result of such review, the Sellers disagree
with Purchaser’s Statement, the Sellers shall deliver to the Purchaser a valid written notice of
disagreement (a “Dispute Notice”) prior to the expiration of the Review Period, specifying
in reasonable detail the nature and amount of such disagreement and including the Sellers’
determination of the Net Working Capital as of the Closing Date. If the Sellers agree with
Purchaser’s Statement, the Sellers shall deliver a written statement to the Purchaser within the
Review Period accepting Purchaser’s Statement (an “Acceptance Notice”), in which case
Purchaser’s Statement shall be final and binding, effective as of the date on which the Purchaser
receives the Acceptance Notice. If the Sellers do not deliver a Dispute Notice or an Acceptance
Notice within the Review Period, then Purchaser’s Statement shall be final and binding, effective
as of the first business day after the expiration of the Review Period.




          (b) Resolution of Disputes. If the Sellers deliver a Dispute Notice to the Purchaser
in a timely manner, then the Purchaser and the Sellers shall attempt in good faith to resolve such
dispute within fifteen (15) days from the date of the Dispute Notice (or such longer period as the
parties may mutually agree). If the Purchaser and the Sellers cannot reach agreement within such
fifteen (15) day period (or such longer period as they may mutually agree), then the Purchaser and
the Sellers shall promptly refer the specific items in dispute to McGladrey & Pullen, LLP (the
“Independent Auditor”) for binding resolution. The Independent Auditor shall work to
resolve such dispute promptly and, to the extent practicable, within thirty (30) days from the date
the dispute is submitted to the Independent Auditor. The Independent Auditor shall act based
solely on the presentations of the Purchaser and the Sellers and not by independent review. Any
item not specifically referred to the Independent Auditor for evaluation shall be deemed final and
binding on the parties. The Independent Auditor shall deliver to the Purchaser and the Sellers a
written opinion setting forth the final determination of the Net Working Capital as of the Closing
Date calculated in accordance with the provisions of this Agreement, which shall not be more than
as set forth in the Dispute Notice nor less than as set forth in Purchaser’s Statement. The
determination of the Independent Auditor shall be final and binding, effective as of the date the
Independent Auditor’s written opinion is received by the Purchaser and the Sellers. The fees,
costs and expenses of the Independent Auditor shall be borne 50% by the Purchaser and 50% by the
Sellers.




          (c) Final Settlement. If the Final Net Working Capital is less than the Target
Amount, the Sellers shall, within five (5) business days from the effective date of such final
determination, pay to the Purchaser the amount of such difference (minus the Holdback Amount, if
any), such payment to be made by wire transfer of immediately available funds to such bank account
as the Purchaser may designate (or in the absence of any such designation, by corporate check
mailed to the Purchaser); if such difference is less than the Holdback Amount, the excess Holdback
Amount shall be paid to Sellers by wire transfer of immediately available funds to such bank
account(s) as the Sellers may designate. If the Final Net Working Capital is




-12-









 







greater than the Target Amount, the Purchaser shall, within five (5) business days from the
date of such final determination, pay to the Sellers the amount of such difference plus the
Holdback Amount, such payment to be made by wire transfer of immediately available funds to such
bank account(s) as the Sellers may designate. Any payments hereunder shall include interest
accrued thereon since the Closing Date at the rate of 6% per annum.




          (d) Any payments made pursuant to this Section 2.4 shall be consistently treated as
adjustments to the Purchase Price.




     2.5 Distribution of Subsidiary. Prior to the Closing, the Company shall distribute
the stock of each of the Subsidiary and the FCC SPE to the Sellers or Affiliates of the Sellers
(other than the Company).



     2.6 Transfer of Cash. On and prior to the Closing Date, the Sellers may cause the
Company to transfer to the Sellers all Cash of the Company. To the extent all Cash as of the
Closing Date is not transferred on the Closing Date to Sellers, the Purchaser shall cause the
Company to promptly pay over to Sellers any such Cash after the Closing.



ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY




     The Company represents and warrants to Purchaser as follows, subject to the exceptions set
forth in the disclosure schedule attached hereto, which is numbered to correspond to the sections
qualified by the disclosures thereon (the “Disclosure Schedule”). Notwithstanding any
other provision of this Agreement, the Company or the Sellers are not making any representations or
warranties with respect to the Subsidiary.



     3.1 Organization and Authorization. The Company is a corporation, duly organized,
validly existing and in good standing under the Laws of the State of Delaware and has all requisite
corporate power and authority to (i) own, lease, and operate its properties and assets and to carry
on its business as presently conducted and (ii) enter into this Agreement, perform its obligations
hereunder and consummate the transactions contemplated hereby. The Company is qualified to do
business in each jurisdiction in which the conduct of its business or ownership of its properties
make such qualification necessary, except for such jurisdictions in which the failure to be so
qualified would not have, individually or in the aggregate, a Material Adverse Effect. The FCC SPE
is a corporation, duly organized, validly existing and in good standing under the Laws of the State
of Delaware and has all requisite corporate power and authority to (i) own, lease, and operate its
properties and assets and to carry on its business as presently conducted and (ii) enter into the
Earth Station Management Agreement, perform its obligations thereunder and consummate the
transactions contemplated thereby. The FCC SPE is qualified to do business in each jurisdiction in
which the conduct of its business or ownership of its properties make such qualification necessary,
except for such jurisdictions in which the failure to be so qualified would not have, individually
or in the aggregate, a material adverse effect on ability of the FCC SPE’s ability to perform its
obligations under the Earth Station Management Agreement.



-13-









 





     3.2 Due Execution and Delivery; Binding Obligations. The execution, delivery and
performance of this Agreement and the Ancillary Documents by the Company has been duly authorized
by all necessary action on the part of the Company. This Agreement has been, and at the Closing
the Ancillary Documents will be, duly executed and delivered by the Company, and this Agreement
constitutes, and each the Ancillary Document will constitute when executed, a legal, valid and
binding agreement of the Company, enforceable against it in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium
or similar Laws relating to or limiting creditors’ rights generally or by equitable principles
relating to enforceability. The execution, delivery and performance of the Earth Station
Management Agreement by the FCC SPE has been duly authorized by all necessary action on the part of
the FCC SPE. At the Closing the Earth Station Management Agreement will be, duly executed and
delivered by the FCC SPE, and the Earth Station Management Agreement will constitute when executed,
a legal, valid and binding agreement of the FCC SPE, enforceable against it in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization,
arrangement, moratorium or similar Laws relating to or limiting creditors’ rights generally or by
equitable principles relating to enforceability.



     3.3 Capitalization.



          (a) The authorized capital stock of the Company consists of 1,000 shares of common stock, par
value $0.01 per share, of which 1,000 shares are issued and outstanding and which constitute the
Shares. The Shares are duly and validly authorized, issued and outstanding, fully paid and
non-assessable. No equity interest in the Company was issued in violation of any Organizational
Document of the Company, any Law or any pre-emptive right (or other similar right) of any Person.
There are no: (1) outstanding subscriptions, options, warrants, put or call rights, preemptive
rights, purchaser rights, subscription rights, conversion rights, exchange right or other
securities, agreements or commitments of any nature whereby any Person has, or has a right to
receive, any economic, voting, ownership or any other type of interest, equity or security in the
Company; (2) equity appreciation, phantom stock, profit participation or similar right with respect
to the Company; or (3) voting trust, proxy or other Contract or understanding with respect to any
equity interest in the Company. True and correct copies of the Company’s Organizational Documents
have been made available to Purchaser.




          (b) At the Closing, the Company will not own, directly or indirectly, any voting securities or
other equity interests in, or have the right to control, any other Person.




     3.4 No Conflict or Violation. Neither the execution and delivery of this Agreement by
the Company nor the consummation of the transactions contemplated hereby by the Company will result
in (i) a breach or violation of, a conflict with, or create a right or obligation under, the
Organizational Documents of the Company, (ii) a violation by the Company of any applicable Law,
(iii) a breach or violation by the Company of or default under any order, judgment, writ,
injunction decree or award to which it is a party or by which it is bound, or (iv) constitute a
breach, violation of or a default under, conflict with or give rise to or create any right of any
Person other than the Sellers to accelerate, increase, terminate, modify or cancel any right or
obligation in a manner adverse to the Company or result in the creation of any Encumbrance, other
than a Permitted Encumbrance, under, any Contract to which any Seller or



-14-









 




the Company is a party or by which any asset of the Company is bound, except where such
breach, violation, default, conflict or right under clause (iv) has not had, and is not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect or material adversely
affect, individually or in the aggregate, Sellers’ ability to consummate the transactions
contemplated herein. No material consents, Permits, approvals or authorizations of, or notices,
declarations, filings, applications, transfers or registrations with, any Governmental Authority or
any other Person are required to be made or obtained by the Company by virtue of the execution,
delivery or performance of this Agreement or the consummation of the transactions contemplated
hereby.




     3.5 Legal Proceedings, Orders and Judgments. There is no action, claim, lawsuit,
complaint or other proceeding pending, or to the Knowledge of the Company, threatened (i) against
the Company, or any of its properties or assets, or to which the Company is a party, that is
material to the Company, (ii) that challenges or seeks to prevent, enjoin, alter or delay the
transactions contemplated hereby or (iii) that challenges or questions the legal right of the
Company to conduct its operations as presently or previously conducted. Neither the Company, nor
any of its assets or properties, is subject to any order, judgment, injunction, writ, indictment or
information, grand jury subpoena or civil investigative demand, plea agreement, stipulation, decree
or award (whether rendered by a court, commission, arbitration tribunal, or judicial, governmental
or administrative department, body, agency, administrator or official, grand jury or any other
forum for the resolution of grievances).



     3.6 Compliance with Law. At all times since the Acquisition Date, the Company has
been operated in compliance in all material respects with all applicable Laws. The Company has not
received any written notice or, to the Knowledge of the Company, oral notice from any Governmental
Authority since the Acquisition Date claiming any material violation or material non-compliance by
the Company of any Law. The Company possesses and is in compliance in all material respects with
each material Permit necessary for the Company to own, operate and use its assets and conduct its
business.



     3.7 Financial Statements. The Company has provided Purchaser with a true, correct and
complete copy of the audited consolidated financial statements of the Company for the fiscal year
ended December 31, 2006, including the notes thereto (the “Audited Financial Statements”)
and the unaudited financial statements of the Company for the nine-month period ended September 30,
2007 (the “Most Recent Financial Statements”, and collectively with the Audited Financial
Statements, the “Financial Statements”). The Financial Statements have been prepared in
accordance with GAAP and the Company Accounting Policies on a consistent basis during the
respective periods covered thereby. The Financial Statements are true and correct in all material
respects and fairly present in all material respects the financial condition of the Company as of
the dates thereof and the results of operations of the Company for the periods covered thereby,
except that the Most Recent Financial Statements are subject to normal year-end adjustments (which
adjustments would not be material in the aggregate, and would be of a normal and recurring type)
and do not have notes included therewith.



     3.8 Absence of Undisclosed Liabilities. The Company has no liabilities or obligations
(whether absolute or contingent) except for liabilities and obligations (i) reflected or reserved
for on the most recent balance sheet included in the Financial Statements or disclosed in



-15-









 




the notes to the Financial Statements, (ii) that have arisen since the date of such balance
sheet in the ordinary course of business consistent with past practice, (iii) in connection with
all Contracts, including without limitation the Material Contracts, which do not arise out of,
relate to or result from and which are not in the nature of and were not caused by any breach of
contract, tort, infringement or violation of applicable Law; (iv) liabilities, commitments or
obligations to the extent expressly disclosed in the Disclosure Schedule; or (v) which in the
aggregate do not exceed $50,000.




     3.9 Absence of Changes. Since September 30, 2007, (i) the Company has operated its
business in the ordinary course, consistent with past practice, (ii) no change or event has
occurred that has had or would reasonably be anticipated to have a Material Adverse Effect, (iii)
no material asset or property of the Company has been destroyed, damaged or otherwise lost (whether
or not covered by insurance); and (iv) the Company has not:



          (a) sold, transferred, disposed of, or agreed to sell, transfer, or dispose of, any material
assets other than sales of inventory in the ordinary course of business consistent with past
practice;




          (b) acquired any material assets other than purchases of inventory in the ordinary course of
business consistent with past practice, nor acquired or merged with any other Person;




          (c) changed any financial or Tax accounting practice, policy or method;




          (d) made any loan, advance or capital contributions to or investment in any Person;




          (e) incurred any Indebtedness or entered into any guaranty of such Indebtedness;




          (f) canceled or forgiven any material debts or claims or redeemed or repaid any Indebtedness;




          (g) granted any Encumbrance on any material asset, other than any Permitted Encumbrance;




          (h) (1) became a guarantor with respect to any obligation of any other Person, (2) assumed or
otherwise became obligated for any obligation of another Person for borrowed money, or (3) agreed
to maintain the financial condition of any other Person;




          (i) (1) except in the ordinary course of business consistent with past practices, entered into
any Material Contract, or amended or terminated (other than Material Contracts that are not with
Material Customers or Material Suppliers and that terminated upon expiration in accordance with
their terms) in any respect that is or was material and adverse to the Company any Material
Contract to which the Company is or was a party, or (2) waived, released or assigned any material
right or claim under any such Material Contract;




-16-









 








          (j) (1) failed to prepare and timely file all Tax Returns relating to the Company required to
be filed by it during such period or timely withhold and remit any employment Taxes applicable to
the Company, (2) filed any amended Tax Return, (3) made or changed any election with respect to
Taxes, or (4) settled or compromised any Tax liability, entered into any Tax closing agreement,
surrendered any right to claim a refund of Taxes, consented to any extension or waiver of the
limitation period applicable to any Tax claim or assessment or took any other similar action
relating to any Tax;




          (k) (1) adopted, entered into, amended or terminated any bonus, profit-sharing, compensation,
severance, termination, pension, retirement, deferred compensation or other employee benefit plan,
agreement, trust, fund or other arrangement for the benefit or welfare of any individual except as
required to comply with applicable Law, (2) entered into or amended any employment arrangement or
relationship with any new or existing employee that had or will have the legal effect of any
relationship other than at-will employment, (3) increased the compensation or any fringe benefit of
any director, officer or management-level employee or paid any benefit to any director, officer or
management-level employee, other than pursuant to a then-existing plan or arrangement and in
amounts consistent with past practice, or (4) granted any award to any director, officer or
management-level employee under any bonus, incentive, performance or other compensation plan or
arrangement (including the removal of any existing restriction in any benefit plan or agreement or
award made thereunder);




          (l) amended the Company’s Organizational Documents;




          (m) authorized or issued any shares of capital stock or any subscription, option, warrant,
call right, preemptive right or other agreement or commitment obligating the Company to issue,
sell, deliver or transfer (including any rights of conversion or exchange under any outstanding
security or other instrument) any economic, voting, ownership or any other type of interest or
security in the Company; or




          (n) entered into any Contract, or agreed or committed (binding or otherwise), to do any of the
foregoing.




     3.10 Material Contracts.



          (a) Section 3.10 of the Disclosure Schedule lists each of the following Contracts to
which the Company is a party as of the date of this Agreement (excluding any Contract which will
not survive the Closing and excluding the Leases listed on Section 3.12 of the Disclosure
Schedule) (each such Contract, a “Material Contract”):




               (i) each Contract involving the borrowing of money by, or any extension of credit to, the
Company (including any loan agreement, promissory note, guarantee, letter of credit or similar
Contract);



               (ii) each Contract pursuant to which the Company is committed to make capital expenditures
in excess of $100,000 in the fiscal year ending December 31, 2007 or any fiscal year
thereafter;



-17-









 





               (iii) each Contract pursuant to which the Company is committed to make purchases of goods
or services in excess of $150,000 in the fiscal year ending December 31, 2007 or any fiscal
year thereafter;



               (iv) each Contract to sell, lease or otherwise dispose of any material assets or
properties of the Company other than sales of inventory in the ordinary course of business;



               (v) each Contract for Company Products, Company Services or Company Software Products with
a Material Customer;



               (vi) each joint venture, or partnership agreement;



               (vii) each Contract in the nature of or including a non-competition agreement;



               (viii) each employment, severance or change-of-control Contract;



               (ix) each Contract to pay or receive any royalty or license fee or to license (either as
licensor or licensee) any Intellectual Property (other than any non-exclusive license for the
use of any commercially available off-the-shelf software which was entered into in the ordinary
course of business of the Company);



               (x) each Contract with any distributor or broker of Company Products, Company Services or
Company Software Products;



               (xi) each Contract containing any form of most-favored pricing provision in favor of any
customer of the Company; or



               (xii) each other material Contract not entered into in the ordinary course of business of
the Company.



          (b) The Company has delivered to Purchaser true, correct and complete copies of each written
Material Contract (not including purchase orders issued under any Material Contract) or accurate
description of any oral Material Contracts. Each Material Contract is valid, binding and
enforceable against the Company and, to the Knowledge of the Company, the other party in accordance
with its terms, except that such enforcement may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other Laws, now or hereafter in effect, relating
to or limiting creditors’ rights generally, and (ii) general principles of equity. To the
Company’s Knowledge, no event has occurred that (with or without the passage of time or giving of
notice) would constitute a material breach or default of, or permit termination, modification,
acceleration or cancellation of, such Material Contract. The Company is not in material breach of
any Material Contract, and no breach will occur as a result of the execution of this Agreement or
the consummation of the transactions contemplated hereby. To the Knowledge of the Company, none of
the other parties to any Material Contract is in material breach thereof.




-18-









 








     3.11 Material Customers. Section 3.11 of the Disclosure Schedule sets forth a
true and complete list of those customers of the Company that had at September 30, 2007 at least
190 active subscribers (each, a “Material Customer”). During the six months prior to the
date hereof, no customer has informed the Company in writing and, to the Knowledge of the Company,
no Material Customer has orally informed the Company that such customer intends to cease doing
business with the Company or to terminate or materially decrease its business with the Company.



     3.12 Real Property. The Company does not own (and has never owned) any real property.
Section 3.12 of the Disclosure Schedule sets forth a complete list of all Leases. The
real property subject to the Leases constitutes all of the real property interests which are
leased, licensed, used or occupied in whole or in part by the Company in connection with its
business. Each Lease is valid, binding and enforceable against the Company in accordance with its
terms, except that such enforcement may be subject to (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other Laws, now or hereafter in effect, relating to or limiting
creditors’ rights generally, and (ii) general principles of equity. The Company is not in material
breach of any Lease, and, to the Knowledge of the Company, none of the other parties to any Lease
is in material breach thereof. The Company has provided to Purchaser true, complete and correct
copies of each of the Leases. The Company has not executed or given any estoppel certificates or
similar instruments to any mortgagee or other third party that would preclude assertion of any
claim by the tenant under any Lease, affect any of the tenant’s rights or obligations under such
Lease or otherwise be binding upon any successor to the Company’s position under such Lease. The
Company has not contested, and is not currently contesting, any operating costs, real estate taxes
or assessments or other charges payable by the tenant under any Lease. Except for the Leases,
there are no leases, subleases or occupancy agreements in effect with respect to the real property
affected by such Leases. There are no pending or, to the Knowledge of the Company, threatened or
contemplated actions or proceedings regarding condemnation or other eminent domain actions or
proceedings affecting the real property covered by any Lease or any part thereof, or of any sale or
other disposition of such real property or any part thereof in lieu of condemnation.



     3.13 Tangible Property. The Company has good and marketable title to, or a valid
leasehold interest in all equipment, furniture and other tangible assets used in the ordinary
course of its business and operations as shown in the Most Recent Financial Statements, free and
clear of any Encumbrances other than Permitted Encumbrances. All of the tangible assets, owned or
leased by the Company are in good working order, ordinary wear and tear excepted, and are suitable
for the purposes for which they are being used.



     3.14 Taxes.



          (a) The Company has timely filed all Tax Returns that it was required to file under applicable
Law. All such Tax Returns were correct and complete in all material respects and were prepared in
material compliance with all applicable Law. All Taxes due and owing by the Company have been paid
or are properly accrued for on the books of the Company and the Working Capital Taxes will be
reflected as a current liability as part of the adjustment to the Purchase Price under Section
2.4. The Company is not the beneficiary of any extension of time within which to file any Tax
Return. No claim has ever been made by a Governmental




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Authority in a jurisdiction where the Company does not file Tax Returns that the Company is or
may be subject to taxation by such jurisdiction. There are no liens for Taxes (other than Taxes
not yet due and payable) upon any asset of the Company.




          (b) The Company has withheld and paid all Taxes required to have been withheld and paid by it
in connection with any amount paid or owing to any employee, independent contractor, creditor,
stockholder, or other Person.




          (c) No Governmental Authority has any reasonable basis to assess any additional Taxes with
respect to the Company for any period for which a Tax Return has been filed. No Tax audit or Tax
proceeding is pending or being conducted or, to the Knowledge of the Company, is threatened by or
under the authority of any Governmental Authority with respect to the Company. The Company has not
received from any Governmental Authority (including in any jurisdiction where the Company has not
filed any Tax Return) any (1) notice indicating an intent to open an audit or other proceeding, (2)
request for information related to Tax matters, or (3) notice of deficiency or proposed adjustment
for any amount of Tax proposed, asserted, or assessed by any Governmental Authority against the
Company. Sellers have delivered to Purchaser correct and complete copies of each income Tax
Return, examination report, and statement of deficiency assessed against or agreed to by the
Company that was filed or received since the Acquisition Date.




          (d) The Company has not waived any statute of limitations in respect of Taxes or agreed to any
extension of time with respect to a Tax assessment or deficiency.




          (e) The Company is not a party to any Contract or other arrangement or plan that has resulted
or could result, separately or in the aggregate, in the payment of (1) any “excess parachute
payment” within the meaning of section 280G of the Code (or any similar provision of applicable
state, local, or foreign law) and (2) any amount that will not be fully deductible as a result of
section 162(m) of the Code (or any similar provision of state, local, or foreign law). The Company
has not been a United States real property holding corporation within the meaning of Section
897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the
Code. The Company has disclosed on all of its federal income Tax Returns all positions taken
therein that could give rise to a substantial understatement of federal income Tax within the
meaning of Section 6662 of the Code. The Company is not a party to or bound by any Tax allocation
or sharing Contract. The Company (A) has not been a member of an affiliated group filing a
consolidated federal income Tax Return (other than a group the common parent of which was the
Company) and (B) has no liability or obligation for the Taxes of any Person (other than the
Company) under Regulation 1.1502-6 (or any similar provision of applicable state, local, or foreign
law), as a transferee or successor, by Contract, or otherwise.




          (f) The unpaid Taxes of the Company (1) did not, as of the date of the Most Recent Financial
Statements, exceed the reserve for Tax liability (rather than any reserve for deferred Taxes
established to reflect timing differences between book and Tax income) set forth on the face of the
Most Recent Financial Statements (rather than in any notes thereto) and (2) do not exceed that
reserve as adjusted for the passage of time through the Closing Date in accordance with the past
custom and practice of the Company in filing its Tax Returns. Since




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the date of the Most Recent Financial Statements, the Company has not incurred any liability
or obligation for Taxes arising from extraordinary gains or losses, as such term is used in GAAP,
outside the ordinary course of business.




          (g) The Company will not be required to include any item of income in, or exclude any item of
deduction from, Taxable income for any Taxable period (or portion thereof) ending after the Closing
Date as a result of any:




               (i) change in method of accounting for a Taxable period ending on or prior to the Closing
Date;



               (ii) “closing agreement” as described in Section 7121 of the Code (or any similar
provision of state, local, or foreign law) executed on or prior to the Closing Date;



               (iii) intercompany transaction or excess loss account described in Treasury Regulations
under Section 1502 of the Code (or any similar provision of state, local, or foreign law);



               (iv) installment sale or open transaction disposition made on or prior to the Closing
Date; or



               (v) prepaid amount received on or prior to the Closing Date.



          (h) Other than as contemplated by Section 2.5 of this Agreement, the Company has not
distributed stock of another Person, or has had its stock distributed by another Person, in a
transaction that was purported or intended to be governed in whole or in part by Section 355 or 361
of the Code.




     3.15 Permits. Section 3.15 of the Disclosure Schedule lists all material
Permits that are necessary to entitle the Company to own or lease, operate and use its assets and
to carry on and conduct its business as currently conducted. There are no pending or, to the
Knowledge of the Company, threatened claims or proceedings challenging the validity of or seeking
to revoke or discontinue (other than expiration according to each respective Permit’s terms), any
of the Permits, and each such Permit is in full force and effect.



     3.16 Intellectual Property.



          (a) The Company IP together with the intellectual property that the Company licenses from
third parties is sufficient for the substantial conduct of the business of the Company as currently
conducted (the “Necessary IP Rights”). To the Knowledge of the Company, the consummation
of the transactions contemplated by this Agreement will not (i) alter, restrict, encumber, impair
or extinguish any Necessary IP Rights, or (ii) result in the creation of any Encumbrance with
respect to any of the Company IP.




          (b) There are no legal disputes or claims pending or to the Knowledge of the Company,
threatened, (i) alleging infringement, misappropriation or any other violation of




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any intellectual property rights of any Person by the Company or any of the Company Products,
Company Software Products or Company Services, or (ii) challenging the scope, ownership, validity,
or enforceability of the Company IP or of the Company use rights under the Necessary IP Rights. To
the Knowledge of the Company, the Company has not infringed, misappropriated or otherwise violated
any intellectual property rights of any Person.




          (c) (i) The Company holds all right, title and interest in and to the Company IP, free and
clear of any Encumbrance, other than Permitted Encumbrances (ii) no Person, other than the Company,
possesses any current or contingent rights to license, sell or otherwise distribute or perform the
Company Products, Company Software Products or Company Services and (iii) there are no restrictions
on the disclosure, use, license or transfer of the Company Products, Company Software Products or
Company Services.




          (d) Section 3.16(d)(i) of the Disclosure Schedule contains a true and complete list of
all Registered IP. To the Knowledge of the Company, the Company has taken all reasonable and
customary actions necessary to maintain and protect such Registered IP, including payment of
applicable maintenance fees, filing of applicable statements of use, timely response to office
actions and disclosure of any required material information, and all assignments (and licenses
where required) of such Registered IP have been duly recorded with the appropriate governmental
authorities. Section 3.16(d)(ii) of the Disclosure Schedule includes a true and complete
list of all actions that must be taken within 90 days of the date hereof with respect to any of
such Registered IP. To the Knowledge of the Company, none of such Registered IP has been adjudged
invalid or unenforceable in whole or part.




          (e) Section 3.16(e)(i) of the Disclosure Schedule contains a true and complete list of
all material licenses and other material Contracts pursuant to which the Company is granted rights
in any third-party software (excluding any Publicly Available Software) (x) comprising all or part
of any Company Software Product, or (y) used or held for use by the Company to perform any Company
Service (excluding, for purposes of both clauses (x) and (y), any generally available,
off-the-shelf software programs licensed by the Company on standard terms). Section
3.16(e)(ii) of the Disclosure Schedule contains a true and complete list of (A) all agreements
pursuant to which the Company has provided source code of any Company Software Product or any part
thereof to a third party, and (B) all third parties to whom the Company has granted a contingent
right to receive the source code of any such Company Software Product or any part thereof, whether
pursuant to an escrow arrangement or otherwise.




          (f) To the Knowledge of the Company, the Company has taken all reasonable and customary steps
to protect its rights in the Company IP and to protect any confidential information provided to it
by any other Person under obligation of confidentiality. Without limitation of the foregoing, to
the Knowledge of the Company, the Company has not made any of its material trade secrets or other
material confidential or proprietary information that they intended to maintain as confidential
(including source code with respect to Company Software Products) available to any other Person
except pursuant to written agreements requiring such Person to maintain the confidentiality of such
information or materials.




          (g) The Company has obtained from all parties (including current or former directors, officers
or employees) who have created any portion of, or otherwise who




-22-









 







would have any rights in or to, any Company IP valid and enforceable written assignments of
any such rights to the Company. To the Knowledge of the Company, the Company is not obligated to
provide any consideration (whether financial or otherwise) to any third party with respect to any
exercise of rights by the Company, or any successor to the Company, in any Company IP, Company
Product, Company Software Product or Company Service.




          (h) Section 3.16(h) of the Disclosure Schedule contains a true and complete list of
all material Company Products, Company Software Products and Company Services.




          (i) No Company Software Product (including any Company Software Product currently under
development) contains any code that is subject to the provisions of any license to software that is
made generally available to the public without requiring payment of fees or royalties (including
any obligation or condition under any “open source” license such as, without limitation, the GNU
General Public License, GNU Lesser General Public License, Mozilla Public License or BSD licenses)
(collectively, “Publicly Available Software”). The Company has not incorporated or
otherwise used Publicly Available Software in a manner that would require, or condition the use or
distribution of, any Company Software Product on the disclosure, licensing or distribution of any
source code for any portion of such Company Software Product.




          (j) The Company Software Products do not contain any computer code designed to materially
disrupt, disable, harm, distort or otherwise impede in any material manner the legitimate operation
of any Company Software Product by its authorized users, or any other associated software,
firmware, hardware, computer system or network (including without limitation what are sometimes
referred to as “viruses”, “worms”, “time bombs” and/or “back doors”).




          (k) The Company has not since the Acquisition Date transferred ownership of, or granted any
exclusive license with respect to, any material Company IP to any other Person.




          (l) Since the Acquisition Date, no funding, facilities or personnel of any governmental agency
were used, directly or indirectly, to develop or create, in whole or in part, any Company IP,
including any Company Product, Company Software Product or Company Service. To the Knowledge of
the Company, the Company is not nor has it ever been a member or promoter of, or a contributor to,
any industry standards body or similar organization that could compel the Company to grant or offer
to any other Person any license or right to material Company IP.




          (m) The IT Assets operate and perform in all material respects in a manner that permits the
Company to substantially conduct its business as currently conducted and, to the Knowledge of the
Company, no person has gained unauthorized access to any material IT Asset. The Company have
implemented reasonable backup processes consistent with industry practices.




-23-









 








          (n) Section 3.16(n) of the Disclosure Schedule hereto separately lists and identifies
all material computer data bases owned by the Company which include, without limitation, customer
and prospective customer mailing lists (the “Owned Data Bases”). For each item on
Section 3.16(n) of the Disclosure Schedule the Company has the right to use the Owned Data
Bases in the conduct of its business as presently conducted, including all intellectual property
rights associated therewith, free and clear of any Encumbrances that might limit or restrict such
use. Neither the execution or the closing of this Agreement shall trigger any obligation on the
part of the Company to place into, hold or release any Owned Data Base in escrow.




          (o) The Company Products, Company Software Products and Company Services are as described in
their respective Documentation and functionally perform in accordance with such Documentation in
all material respects when used and operated in accordance therewith.




     3.17 Employee Matters and Benefit Plans.



          (a) Section 3.17(a) of the Disclosure Schedule lists each employee of the Company as of the
date hereof, along with each employee’s date of hire. No Employees are represented by any labor
organization and the Company is not a party to or bound by any collective bargaining agreement or
other agreement with any labor organization. Since the Acquisition Date, there have been no
representation or certification proceedings, or petitions seeking a representation proceeding,
pending or, to the Knowledge of the Company, threatened to be brought or filed with the National
Labor Relations Board or any other labor relations tribunal or Governmental Authority with respect
to any Employees.




          (b) There are no strikes, work stoppages, slowdowns, job actions, disputes, lockouts,
arbitrations, or grievances or other material labor disputes pending or, to the Knowledge of the
Company, threatened, against or involving the Company. There are no unfair labor practice charges,
grievances, or complaints pending or, to the Knowledge of the Company, threatened by or on behalf
of any Employee or group of Employees.




          (c) The Company has not received written notice of any complaints, charges, or claims against
it and, to the Knowledge of the Company, there are no complaints, charges or claims threatened to
be brought or filed with any Governmental Authority, based on, arising out of, in connection with,
or otherwise relating to the employment or termination of employment of any individual by the
Company, which, individually or in the aggregate, are likely to result in a material obligation or
liability of the Company.




          (d) There has been no “mass layoff” or “plant closing” as defined by the federal Worker
Adjustment, Retraining and Notification Act or any similar state statute in respect of the Company
within the six months prior to the date of this Agreement.




          (e) Section 3.17(e) of the Disclosure Schedule contains (i) a true and complete list
of each Company Benefit Plan in effect as of the date of this Agreement, (ii) lists all insurance
policies with respect to Company Benefit Plans, and (iii) lists all self insurance arrangements
(other than deductible amounts) for Company Benefit Plans. With respect to each




-24-









 







Company Benefit Plan, the Company has made available to Purchaser a true and complete copy of
the plan documents and any amendments thereto, and any related trust agreements, insurance
contracts, or other funding vehicles, the Form 5500 annual reports and accompanying schedules, if
any, filed for the last two plan years, the current summary plan description, or, if such plan is
not subject to ERISA, a written summary of the benefits.




          (f) Each Company Benefit Plan complies, and has complied since the Acquisition Date (except
for any noncompliance that has been fully addressed and resolved as of the date hereof), in all
material respects with the provisions of and has been administered in material compliance with the
applicable provisions of the Code and ERISA and all other applicable Laws.




          (g) There is no pending or, to the Knowledge of the Company, threatened claim, legal action,
proceeding, audit or, to the Knowledge of the Company, investigation against or involving any
Company Benefit Plan, other than routine claims for benefits. No filings have been made or are
currently pending with respect to any Company Benefit Plan under any voluntary compliance program
of the Internal Revenue Service or the Department of Labor. The Company has not engaged in any
“prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA), which
would reasonably be expected to subject the Company or any person that the Company has an
obligation to indemnify to any material tax or penalty imposed under Section 4975 of the Code or
Section 502 of ERISA.




          (h) No Company Benefit Plan is or was subject to Title IV of ERISA or Section 412 of the Code
or is or was a “multiemployer plan” within the meaning of Section 3(37) of ERISA. The Company has
not received notice with respect to any Company Benefit Plan that is a multiemployer plan of (i)
any failure by such plan to satisfy the minimum funding requirements of Section 412 of the Code,
(ii) any application for or receipt of a waiver of such minimum funding requirements with respect
to such plan, or (iii) such plan’s insolvency, entry into reorganization within the meaning of
Section 4241 of ERISA, intention to terminate or proposed or threatened termination.




          (i) The Company (i) has no actual or potential withdrawal liability with respect to any
multiemployer plan and (ii) has not incurred any liability under the Code or ERISA or other
applicable Law with respect to an ERISA Affiliate Plan.




          (j) Each Company Benefit Plan that meets or purports to meet the requirements of Section
401(a) of the Code has been the subject of a favorable determination or opinion letter that has not
been revoked, or the remedial amendment period under Section 401(b) of the Code and IRS Revenue
Procedure 2007-44 has not expired.




          (k) All material contributions with respect to or on behalf of Employees to any Company
Benefit Plan which is an “employee pension benefit plan” within the meaning of Section 3(2) of
ERISA which have been required in accordance with the terms of such Company Benefit Plan have been
timely made or accrued.




          (l) No Company Benefit Plan provides for life, health, medical or other welfare benefits to
former employees or beneficiaries or dependents thereof, except for




-25-









 







health continuation coverage as required by Section 4980B of the Code or Part 6 of Title I of
ERISA.




          (m) Since December 31, 2004, any Company Benefit Plan that is a nonqualified deferred
compensation plan subject to the requirements of Code Section 409A has been operated in compliance
with the requirements of Code Section 409A and applicable guidance and regulations in effect from
time to time thereunder. No event has occurred that would be treated by Code Section 409A(b) as a
transfer of property for purposes of Code Section 83.




          (n) Neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (either alone or in conjunction with any other event) result
in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of
(including the forgiveness of indebtedness), any payment or benefit to any employee, officer or
director of the Company under a Company Benefit Plan, or result in any limitation on the right of
the Company to amend, merge or terminate any Company Benefit Plan or related trust.




          (o) Except as disclosed on Section 3.17(o) of the Disclosure Schedule, each Employee
is an employee-at-will, and the Company would not have an obligation to make severance payments to
any Employee if the Company were to terminate the Employee’s employment with the Company.




     3.18 Environmental Matters.



          (a) The Company is in compliance in all material respects with all Environmental Laws.
Without limiting the generality of the foregoing, the Company has obtained and is in compliance, in
all material respects, with all Permits that may be required pursuant to Environmental Laws for the
occupation of its facilities and the operation of its business as currently conducted.




          (b) The Company has not received any outstanding written notice, written report or other
written information regarding any actual or alleged material violation of Environmental Laws,
including any investigatory, remedial or corrective obligations, arising under Environmental Laws,
with respect to its business.




     3.19 Insurance.



          (a) Section 3.19(a) of the Disclosure Schedule lists all policies to which the Company
is a party or under which any of its assets, employees, officers, or directors (in each such
individual’s capacity as such) is a named insured or otherwise the beneficiary of coverage
thereunder. Certain of such policies are held by a Seller or an Affiliate of a Seller other than
the Company, and are so identified on Section 3.19(a) of the Disclosure Schedule, and will
not be available to Purchaser or the Company after the Closing, and Purchaser shall be responsible
for arranging for such insurance for the Company after the Closing as Purchaser shall deem
appropriate.




-26-









 








          (b) All such insurance policies are in full force and effect and the Company has not agreed to
reduce or cancel any of such insurance policies prior to the Closing or received notice of any
actual or threatened modification or cancellation of, or default under, any such policies.




     3.20 Affiliate Transactions. Except for such Contracts as will be terminated on or
prior to the Closing, which are listed on Section 3.20 of the Disclosure Schedule, no
Seller nor any officer, director, employee, stockholder, or Affiliate of any Seller or of the
Company is a party to any Contract or transaction with, or has any claim for indemnification under
applicable Law or any agreement against, the Company or has any interest in any property, real or
personal or mixed, tangible or intangible, of the Company.



     3.21 No Brokers or Finders. Except for Morgan Keegan & Company, Inc., no agent,
broker, finder, investment or commercial banker or other Person, engaged by or acting on behalf of
any Seller or any Affiliate of any Seller or the Company in connection with the negotiation,
execution or performance of this Agreement or the transactions contemplated herein, is or will be
entitled to any broker’s or finder’s or similar fees or other commissions from the Company as a
result of this Agreement or the transactions contemplated herein. The Sellers shall be solely
responsible for any such broker’s or finder’s or similar fees or other commissions.



     3.22 Accounts Receivable. All accounts receivable (including any notes receivable) of
the Company that are reflected on the Financial Statements or on the accounting records of the
Company as of the Closing (collectively, the “Accounts Receivable”) represent or will
represent valid obligations arising from sales actually made or services actually performed in the
ordinary course of business consistent with past practices. Other than product returns and matters
in the ordinary course of business, there is no material contest, claim or right of set off under
any Contract with any obligor of any Account Receivable regarding the amount or validity of such
Account Receivable, net of reserves set forth on the Financial Statements or in the accounting
records of the Company.



     3.23 Inventory. The inventory of the Company does not include items that are
obsolete, damaged or slow moving, for which reserves have not been established in accordance with
GAAP. The inventory of the Company is in good and merchantable condition, is suitable and usable
for the purposes for which it is intended and is in a condition such that it can be sold in the
ordinary course consistent with the Company’s past practice. The Company’s inventory is valued on
the Financial Statements at the lesser of cost or fair market value net of reserves recorded in
accordance with GAAP. Inventory now on-hand that was purchased after September 30, 2007 was
purchased in the ordinary course of business by the Company at a cost not exceeding market prices
prevailing at the time of purchase.



     3.24 Powers of Attorney. There is no outstanding power of attorney with respect to
the Company.



     3.25 Product Warranties. The Company has no material liability (and there is no
reasonable basis for any proceeding against it giving rise to any material liability) for
replacement or repair or other damages in connection with product warranty claims, subject to: (a)
the greater of $750,000 and the reserve for product warranty claims shown on the face of the



-27-









 




Company’s audited financial statements for the year ended December 31, 2007, plus (b) cash
received after Closing as payment for such product warranties that is not included in clause (a).
No product manufactured, sold, leased or delivered by the Company is subject to any guaranty,
warranty or other indemnity beyond the applicable standard terms and conditions of sale or lease
identified in the Disclosure Schedule.




     3.26 Products Liability. The Company has no material liability arising out of,
relating to or resulting from any injury to any individual or property as a result of the
ownership, possession or use of any product manufactured by the Company since the Acquistion Date
and prior to the Closing Date.



     3.27 Material Suppliers. Section 3.27 of the Disclosure Schedule lists the
suppliers (listing dollar volume for each) of products and services to the Company currently under
contract which involved payments for the 9-month period ended September 30, 2007 in excess of
$150,000 (excluding professional service providers and suppliers that will not provide products or
services to the Company after the Closing) (a “Material Supplier”). During the six months
prior to the date hereof, no current supplier has informed the Company in writing and no Material
Supplier has orally informed the Company that such supplier intends to terminate, including with
respect to any material component used in the Company’s products, or materially reduce any aspect
of its or any of its Affiliate’s business relationship with the Company.



     3.28 Indebtedness. Except for Indebtedness listed in Section 3.28 of the
Disclosure Schedule, the Company has no Indebtedness outstanding on date hereof and except for
Indebtedness to be paid off pursuant to a payoff letter, the Company will not have any Indebtedness
outstanding on the Closing Date.



     3.29 Disclaimer of Additional and Implied Warranties. Sellers and the Company are
making no representations or warranties, express or implied, of any nature whatsoever except as
specifically set forth in this Agreement and the Ancillary Documents, and no other statements,
documents or communications that may be made or provided, or may have been made or provided,
including, without limitation, the Confidential Memorandum prepared by Morgan Keegan & Company,
Inc. in connection with the proposed sale of the Company, or any other information made available
to Purchaser or its Representatives at any time in any “data room,” management presentation,
break-out session or response to any question submitted by Purchaser or its Representatives, shall
be deemed to be a representation or warranty of any Seller or the Company for any purpose.



ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF SELLERS




     Each Seller represents and warrants severally and not jointly to Purchaser as follows with
respect only to such Seller, subject to the exceptions set forth in the Disclosure Schedule
attached hereto.



     4.1 Organization and Authorization. Such Seller is a limited partnership, or limited
liability company duly organized, validly existing and in good standing under the Laws of the State
of Delaware and has all requisite power and authority to enter into this Agreement,



-28-









 




perform its obligations hereunder and consummate the transactions contemplated hereby. John
Lewis , Jeff Sim, Steve Zollo, Matthias Heilmann, Renee Koontz and Todd Golditch are the members of
the operating committee of the Company that is responsible for the oversight of the Company.




     4.2 Due Execution and Delivery; Binding Obligations. The execution, delivery and
performance of this Agreement and the Ancillary Documents by such Seller has been duly authorized
by all necessary action on the part of such Seller. This Agreement has been, and at the Closing
the Ancillary Documents will be, duly executed and delivered by such Seller, and this Agreement
constitutes, and each the Ancillary Document will constitute when executed, a legal, valid and
binding agreement of such Seller, enforceable against such Seller in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement,
moratorium or similar Laws relating to or limiting creditors’ rights generally or by equitable
principles relating to enforceability.



     4.3 Title to Shares. Each Seller owns, of record and beneficially, the Shares set
forth opposite such Seller’s name on Schedule A attached hereto, and at the Closing such
Shares will be free and clear of all Encumbrances, except for restrictions on transfer under
federal and state securities Laws.



     4.4 No Conflict or Violation. Neither the execution and delivery of this Agreement by
such Seller nor the consummation of the transactions contemplated hereby by such Seller will result
in (i) a breach or violation of, a conflict with, or create a right or obligation under, the
Organizational Documents of such Seller, (ii) a violation by such Seller of any applicable Law, or
(iii) a breach or violation by such Seller of or default under any order, judgment, writ,
injunction decree or award to which it is a party or by which it is bound. No material consents,
Permits, approvals or authorizations of, or notices, declarations, filings, applications, transfers
or registrations with, any Governmental Authority or any other Person are required to be made or
obtained by such Seller by virtue of the execution, delivery or performance of this Agreement or
the consummation of the transactions contemplated hereby.



     4.5 Disclaimer of Additional and Implied Warranties. Sellers and the Company are
making no representations or warranties, express or implied, of any nature whatsoever except as
specifically set forth in this Agreement and the Ancillary Documents, and no other statements,
documents or communications that may be made or provided, or may have been made or provided,
including, without limitation, the Confidential Memorandum prepared by Morgan Keegan & Company,
Inc. in connection with the proposed sale of the Company, or any other information made available
to Purchaser or its Representatives at any time in any “data room,” management presentation,
break-out session or response to any question submitted by Purchaser or its Representatives, shall
be deemed to be a representation or warranty of any Seller or the Company for any purpose.



     4.6 Securities. In connection with the acquisition of the Securities, each of the
Sellers represents to Purchaser as follows:



          (a) The Seller has been provided the opportunity to ask questions and receive answers
concerning Purchaser and the transaction in which the Securities are being




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issued, and to obtain any other information it deems necessary to verify the accuracy of the
information provided to it; and has otherwise acquired information about Purchaser sufficient to
reach an informed and knowledgeable decision to acquire its pro rata portion of the Securities.
The Seller is acquiring its pro rata portion of the Securities for its own account for investment
purposes only and not with a view to, or for resale in connection with, any “distribution” thereof
for purposes of the Securities Act of 1933, as amended (“Act”).




          (b) The Seller further understands that the Escrowed XATA Shares and the shares of common
stock of XATA Corporation into which the Seller Convertible Notes are convertible must be held
indefinitely unless subsequently registered under the Act or unless an exemption from registration
is otherwise available. In addition, the Seller understands that the certificate evidencing its
pro rata portion of the Escrowed XATA Shares and the shares of common stock of XATA Corporation
into which the Seller Convertible Notes are convertible will be imprinted with a legend in
substantially the following form:





THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE OR OTHER SECURITIES LAWS AND MAY NOT BE OFFERED,
SOLD, TRANSFERRED, OR ASSIGNED EXCEPT (i) PURSUANT TO REGISTRATIONS THEREOF UNDER
SUCH LAWS, OR (ii) IF, IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO XATA
CORPORATION THE PROPOSED TRANSFER MAY BE EFFECTED IN COMPLIANCE WITH APPLICABLE
SECURITIES LAWS WITHOUT SUCH REGISTRATIONS.



          (c) The Seller is aware of the provisions of Rule 144 promulgated by the SEC under the Act
(“Rule 144”), which, in substance, permits limited public resale of “restricted securities”
acquired, directly or indirectly, from the issuer thereof (or from an affiliate of the issuer), in
a nonpublic offering subject to the satisfaction of certain conditions.




          (d) The Seller understands that the Securities have not been registered under any state or
other securities laws and may not be offered or sold without compliance with applicable state or
other securities laws, whether through registration of the offer and sale of the Securities or in
reliance upon one or more exemptions from registration available under state or other securities
laws. The Seller understands that Purchaser is not obligated to register the Securities.




          (e) The Seller is an “accredited investor” as defined in Rule 501 promulgated under the Act.
The Seller has such knowledge and experience in financial and business matters that it is capable
of evaluating the merits and risks relating to its acquisition of its pro rata portion of the
Securities.




ARTICLE V

REPRESENTATIONS AND WARRANTIES OF PURCHASER




     Purchaser represents and warrants to Sellers as follows:



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     5.1 Organization and Authorization of Purchaser. Purchaser is a corporation duly
organized, validly existing and in good standing under the Laws of its State of incorporation.
Purchaser has the requisite corporate power and authority to enter into this Agreement, the Seller
Notes and the Seller Convertible Notes, to perform its obligations hereunder and thereunder, and to
consummate the transactions contemplated hereby and thereby.



     5.2 Due Execution and Delivery; Binding Obligations. The execution, delivery and
performance by Purchaser of this Agreement the Seller Notes and the Seller Convertible Notes, have
been duly authorized by all necessary action on the part of Purchaser. This Agreement has been
duly executed and delivered by Purchaser. This Agreement, the Seller Notes and the Seller
Convertible Notes, constitute the legal, valid and binding agreements of Purchaser, enforceable in
accordance with their terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, arrangement, moratorium or similar Laws relating to or limiting creditors’ rights
generally or by equitable principles relating to enforceability.



     5.3 No Conflict or Violation. Neither the execution and delivery of this Agreement,
the Seller Notes or the Seller Convertible Notes by Purchaser nor the consummation of the
transactions contemplated hereby or thereby, will result in (i) a violation of, or a conflict with,
Purchaser’s Organizational Documents, (ii) a material violation by Purchaser of any applicable Law
or (iii) a violation by Purchaser of any order, judgment, writ, injunction decree or award to which
it is a party or by which Purchaser is affected. No consents, Permits, approvals or authorizations
of, or declarations, filings, applications, transfers or registrations with, any Governmental
Authority or any other Person are required to be made or obtained by Purchaser by virtue of the
execution, delivery or performance of this Agreement, the Seller Notes or the Seller Convertible
Notes, or the consummation of the transactions contemplated hereby or thereby.



     5.4 No Brokers or Finders. No agent, broker, finder, investment or commercial banker
or other Person engaged by or acting on behalf of Purchaser or any of its Affiliates in connection
with the negotiation, execution or performance of this Agreement or the transactions contemplated
herein is or will be entitled to any broker’s or finder’s or similar fees or other commissions as a
result of this Agreement or the transactions contemplated herein except for such fees that will be
payable by Purchaser or by the Company after the Closing.



     5.5 Funding. Purchaser has or will have at Closing the required funds needed to
consummate the purchase of the Shares as contemplated by this Agreement.



     5.6 Investment Intent. Purchaser is acquiring the Shares for its own account for
investment and not with a view to, or for sale in connection with, any distribution thereof.
Purchaser has no present intention of selling, granting participation in, or otherwise distributing
the Shares. Purchaser is an “accredited investor” as defined in Rule 501(a) under the Act.
Purchaser understands that the Shares have not been registered under the Act, and that the Shares
may not be sold, transferred or otherwise disposed of without registration under the Act, or an
exemption therefrom. Purchaser has such knowledge and experience in financial, Tax, and business
matters in general, and investments in securities in particular, so as to enable Purchaser



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to evaluate the merits and risks of an investment in the Shares and to make an informed
investment decision with respect to an investment in the Shares.




     5.7 Issuance of Shares of XATA Corporation Common Stock. The Escrowed XATA Shares and
the shares of common stock of XATA Corporation into which the Seller Convertible Notes are
convertible have been duly authorized and reserved, and, upon issuance in accordance with the terms
of this Agreement and the Seller Convertible Notes, respectively, will be validly issued, fully
paid and non-assessable.



     5.8 Financing. Purchaser has delivered to Sellers true and complete copies of the
commitment letter, dated as of December 19, 2007, between Purchaser and Silicon Valley Bank and
the commitment letter, dated as of December 19, 2007, between Purchaser and Partners for Growth II,
L.P. (the “Financing Commitments”), pursuant to which such lenders (the “Lenders”)
have agreed to lend the amounts set forth therein (the “Financing”) for the purpose of
funding the transactions contemplated by this Agreement. None of the Financing Commitments has
been amended or modified since the date thereof and hereof, and the respective commitments
contained in the Financing Commitments have not been withdrawn or rescinded in any respect. The
Financing Commitments are in full force and effect. There are no conditions precedent or other
contingencies related to the funding of the full amount of the Financing, other than as expressly
set forth in the Financing Commitments and the execution of subordination agreements between the
Lenders and the Sellers. The aggregate proceeds to be disbursed pursuant to the agreements
contemplated by the Financing Commitments, together with available cash of the Purchaser, will be
sufficient for Purchaser to pay the aggregate cash Purchase Price and to pay all related fees and
expenses, including payment of all amounts contemplated by Article II of this Agreement. As of the
date of this Agreement, to the knowledge of Purchaser no event has occurred that is reasonably
likely to result in any breach or violation of or constitute a default or a failure of any
condition (or an event which with notice or lapse of time or both would become a default or
failure) under the Financing Commitments, and Purchaser does not have any reason to believe that
any of the conditions to the Financing will not be satisfied or that the Financing will not be
available to Purchaser on the Closing Date. Purchaser has caused to be fully paid all commitment
fees or other fees required to be paid prior to the date of this Agreement pursuant to the
Financing Commitments.



ARTICLE VI

COVENANTS




     6.1 Access to Information. From the date hereof through the Closing Date, the Company
shall provide Purchaser and its Representatives with such information regarding the Company as
Purchaser may reasonably request. Notwithstanding the foregoing, Purchaser shall not contact any
employee, lessor, customer or supplier of the Company regarding the transactions contemplated
herein without the prior written consent of the Company, which consent will not be unreasonably
withheld.



     6.2 Conduct of the Business. Except as specifically contemplated by this Agreement,
from the date hereof through the Closing Date, the Company shall conduct its business in the
ordinary course consistent with past practice. For avoidance of doubt, this section shall not
apply to the Subsidiary. Without limiting the generality of the foregoing, except



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as specifically contemplated by this Agreement or as consented to in writing by Purchaser, the
Company shall not:




          (a) amend the Company’s Organizational Documents;




          (b) authorize or issue any shares of capital stock or any subscription, option, warrant, call
right, preemptive right or other agreement or commitment obligating the Company to issue, sell,
deliver or transfer (including any rights of conversion or exchange under any outstanding security
or other instrument) any economic, voting, ownership or any other type of interest or security in
the Company;




          (c) sell, transfer, dispose of, or agree to sell, transfer, or dispose of, any material assets
other than sales of inventory in the ordinary course of business consistent with past practice;




          (d) acquire any material assets other than purchases of inventory in the ordinary course of
business consistent with past practice, or acquire or merge with any other Person;




          (e) change any financial or Tax accounting practice, policy or method;




          (f) make any loan, advance or capital contributions to or investment in any Person;




          (g) incur any indebtedness for borrowed money or enter into any guarantee of such
indebtedness;




          (h) cancel or forgive any material debts or claims or redeem or repay any indebtedness for
borrowed money;




          (i) grant any Encumbrance on any material asset, other than any Permitted Encumbrance;




          (j) become a guarantor with respect to any obligation of any other Person, (2) assume or
otherwise became obligated for any obligation of another Person for borrowed money, or (3) agree to
maintain the financial condition of any other Person;




          (k) except in the ordinary course of business consistent with past practices, (1) enter into
any material Contract, or amend or terminate (other than upon expiration in accordance with its
terms) in any respect that is or was material and adverse to the Company any material Contract to
which the Company is or was a party, or (2) waive, release or assign any material right or claim
under any such material Contract;




          (l) (1) fail to prepare and timely file all Tax Returns relating to the Company required to be
filed by it during such period or timely withhold and remit any employment Taxes applicable to the
Company, (2) file any amended Tax Return, (3) make or change any election with respect to Taxes, or
(4) settle or compromise any Tax liability, enter into any Tax closing agreement, surrender any
right to claim a refund of Taxes, consent to any




-33-









 







extension or waiver of the limitation period applicable to any Tax claim or assessment or took
any other similar action relating to any Tax;




          (m) (1) adopt, enter into, amend or terminate any bonus, profit-sharing, compensation,
severance, termination, pension, retirement, deferred compensation or other employee benefit plan,
agreement, trust, fund or other arrangement for the benefit or welfare of any individual, except as
required to comply with applicable Law, (2) other than in the ordinary course of business, enter
into or amended any employment arrangement or relationship with any new or existing employee that
had or will have the legal effect of any relationship other than at-will employment, (3) other than
in the ordinary course of business, increase the compensation or any fringe benefit of any
director, officer or management-level employee or pay any benefit to any director, officer or
management-level employee, other than pursuant to a then-existing plan or arrangement and in
amounts consistent with past practice, or (4) other than in the ordinary course of business, grant
any award to any director, officer or management-level employee under any bonus, incentive,
performance or other compensation plan or arrangement (including the removal of any existing
restriction in any benefit plan or agreement or award made thereunder); or




          (n) authorize, commit or agree to take any of the foregoing actions.




     6.3 Regulatory and Other Authorizations; Consents; Permits. Each party hereto shall
use its commercially reasonable efforts to obtain all authorizations, consents, orders and
approvals of any Governmental Authority (other than the FCC which shall be governed by Section
6.16), that may be or become necessary for its execution and delivery of, and the performance of
its obligations pursuant to, this Agreement and will cooperate fully with the other party in
promptly seeking to obtain all such authorizations, consents, orders and approvals. The Sellers,
Purchaser and the Company shall each use commercially reasonable efforts to obtain, as soon as
practicable, the consent of each other Person that is required under any Contract, Lease, Permit or
otherwise as a result of the transactions contemplated by this Agreement; provided,
however, that prior to the Closing, Purchaser shall not contact such Persons without the
prior written consent of the Company. Without limiting the generality of the foregoing, Purchaser
agrees to provide such assurances as to financial capability, resources and credit worthiness as
may be reasonably requested by any Person whose consent or approval is sought hereunder;
provided, however, that except as provided herein Purchaser is not required to
make any payment to any other Person regarding any authorizations, consents, orders or approvals,
other than fees of their legal counsel in connection therewith.



     6.4 Confidentiality.



          (a) The confidentiality obligations of Purchaser shall be governed by that certain
Confidentiality Agreement between Morgan Keegan and Company, Inc. and the Purchaser date May 21,
2007 (the “Confidentiality Agreement”), which shall not be affected by the execution of
this Agreement, except that (i) after the Closing Date, confidential information covered by the
Confidentiality Agreement, for purposes of the obligations of the Purchaser under the
Confidentiality Agreement, will be deemed not to refer to any information then relating to the
business of the Company and (ii) the Purchaser may disclose confidential information covered




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by the Confidentiality Agreement to the extent required by applicable Law or Nasdaq rules and
regulations.




          (b) For a period of five years from the Closing Date (except for all Company trade secrets,
for which the period shall continue until it is no longer a trade secret as a result of disclosure
of such information by persons other than the Sellers and their employees and representatives)
Sellers will hold, and will use their reasonable best efforts to cause their respective
representatives and Affiliates to hold, in confidence, except to the extent required by applicable
Law, all confidential information regarding the Company, except to the extent that such information
can be shown to have been (i) previously known on a nonconfidential basis by Sellers, (ii) in the
public domain through no fault of the Sellers or (iii) later lawfully acquired by Sellers from
sources other than the Company or the Purchaser or any of its subsidiaries or any other person not
under a non-disclosure or confidentiality obligation in favor of the Company or the Purchaser or
any of its subsidiaries; provided, that Sellers may disclose such information (A) to their
employees and representatives who need to know such information for purposes of participating in
the evaluation, negotiation and/or execution of the transactions contemplated by this Agreement and
the Ancillary Documents so long as such persons are informed by Sellers of the confidential nature
of such information and are directed by Sellers to treat such information confidentially and (B) to
the extent required to defend any claim asserted against Sellers or assert any claim that may be
available to Sellers. The Sellers shall be responsible for any failure to treat such information
confidentially by such persons. The Sellers specifically acknowledge and agree that (1) this
Section 6.4(b) and each term hereof are reasonable and necessary to ensure that the
Purchaser receives the expected benefits of acquiring the Shares, (2) the Purchaser has refused to
enter into this Agreement in the absence of this Section 6.4(b) and (3) breach of this
Section 6.4(b) will harm the Purchaser to such an extent that monetary damages alone would
be an inadequate remedy. Therefore, in the event of a breach by the Seller of this Section
6.4(b), the Purchaser (in addition to all other remedies the Purchaser may have) will be
entitled to seek a temporary restraining order, injunction and other equitable relief (without
posting any bond or other security) restraining the Sellers from committing or continuing such
breach.




     6.5 Publicity. Except as may be required by applicable Law or Nasdaq rules and
regulations , no party to this Agreement shall, or shall allow any of its Affiliates, to make any
public announcements in respect of this Agreement or the transactions contemplated hereby or
otherwise communicate with any news media without prior consent of the other party, and the parties
shall cooperate as to the timing and contents of any such announcement. Notwithstanding the
foregoing, after the initial announcement of the transactions contemplated hereby by the parties
and provided that the Closing has occurred, then each party may issue further press releases,
tombstones and similar announcements without the consent of the other party, provided that such
announcements are consistent with, and not broader in scope with respect to the information they
disclose, than the announcements previously mutually agreed.



     6.6 Indemnification of Officers and Directors. For a period of not less than six
years after the Closing, Purchaser shall, and shall cause the Company to, (i) indemnify, defend and
hold harmless the officers, directors, employees and agents of the Company to the fullest extent
permitted under applicable Law against Damages arising out of claims brought or made by third
parties based on the actions of such persons in their capacities as officers, directors, employees
or agents of the Company prior to the Closing, and (ii) maintain in full



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force and effect and honor, all obligations to indemnify the officers, directors, employees
and agents of the Company and to advance expenses existing in favor of such persons in effect as of
the Closing Date under Delaware Law or as provided in the Organizational Documents of the Company
or in any written agreement between the Company, on the one hand, and any such Person, on the other
hand.




     6.7 Tax Matters. The following provisions shall govern the allocation of
responsibility as between Purchaser and Sellers for certain tax matters following the Closing Date:



          (a) Tax Periods Ending On or Before the Closing Date. Purchaser shall prepare or
cause to be prepared and file or cause to be filed all Tax Returns for the Company and its
Subsidiary for all periods ending on or prior to the Closing Date (the “Pre-Closing Tax
Period”) which are filed after the Closing Date. Purchaser shall permit Sellers to review and
comment on each such Tax Return described in the preceding sentence at least thirty (30) days prior
to the due date for such Tax Returns and shall make such revisions to such Tax Returns as are
reasonably requested by Sellers. Sellers shall reimburse Purchaser for Taxes of the Company and
its Subsidiary with respect to such Pre-Closing Tax Periods within fifteen (15) days after payment
by Purchaser or the Company and the Subsidiary of such Taxes to the extent such Taxes in the
aggregate exceed the aggregate amount of Taxes reflected in Final Net Working Capital.




          (b) Tax Periods Beginning Before and Ending After the Closing Date. Purchaser shall
prepare or cause to be prepared and file or cause to be filed any Tax Returns of the Company for
Tax periods which begin before the Closing Date and end after the Closing Date. Purchaser shall
permit Sellers to review and comment on each such Tax Return described in the preceding sentence at
least thirty (30) days prior to the due date for such Tax Returns and shall make such revisions to
such Tax Returns as are reasonably requested by Sellers. Seller shall pay to Purchaser within
fifteen (15) days after the date on which Taxes are paid with respect to such periods an amount
equal to the portion of such Taxes which relates to the portion of such Taxable period ending on
the Closing Date to the extent such Taxes in the aggregate exceed the aggregate amount of Taxes
reflected in the Final Net Working Capital. For purposes of this Section 6.7, in the case of any
Taxes that are imposed on a periodic basis and are payable for a taxable period that includes (but
does not end on) the Closing Date, the portion of such Tax which relates to the portion of such
taxable period ending on the Closing Date shall (x) in the case of any Taxes other than Taxes based
upon or related to income or receipts, be deemed to be the amount of such Tax for the entire
taxable period multiplied by a fraction the numerator of which is the number of days in the taxable
period ending on the Closing Date and the denominator of which is the number of days in the entire
taxable period, and (y) in the case of any Tax based upon or related to income or receipts be
deemed equal to the amount which would be payable if the relevant taxable period ended on the
Closing Date. Any credits or reductions to Tax (such as net operating losses) relating to a
Taxable period that begins before and ends after the Closing Date shall be taken into account as
though the relevant taxable period ended on the Closing Date. All determinations necessary to give
effect to the foregoing allocations shall be made in a manner consistent with prior practice of the
Company. Purchaser shall use reasonable best efforts to prepare the returns described in Section
6.7(a) and this Section 6.7(b) for Sellers’




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review, comment and filing within 60 days after the Closing (to the extent the relevant
taxable period has ended before that 60th day).




          (c) Refunds and Tax Benefits. Any Tax refunds that are received or Tax credits
utilized by Purchaser or the Company and the Subsidiary, any reduction in Tax liability or any
amounts credited against Tax to which Purchaser or the Company and the Subsidiary become entitled,
that are attributable to Pre-Closing Tax Periods or, with regard to Tax periods that include but do
not end on the Closing Date, portions of those Tax periods ending on the Closing Date, shall be for
the account of Sellers, and Purchaser shall pay over to Sellers any such refund, reduction in Tax
liability or the amount of any such credit within fifteen (15) days after receipt or entitlement
thereto. In addition, to the extent that a claim for refund or a proceeding results in a payment
or credit against Tax by a taxing authority to the Purchaser or the Company and the Subsidiary of
any amount accrued on the Most Recent Financial Statements, the Purchaser shall pay such amount to
Sellers within fifteen (15) days after receipt or entitlement thereto. Notwithstanding the
foregoing, all net operating losses of the Company shall be for the account of the Company and the
Purchaser and not for the account of the Sellers, and the Purchaser shall have no obligation to pay
to Sellers any amount with respect to the Company’s net operating losses.




          (d) Cooperation on Tax Matters. Purchaser, the Company, and Sellers shall cooperate
fully, as and to the extent reasonably requested by the other party, in connection with the filing
of Tax Returns pursuant to this Section 6.7 and any audit, litigation or other proceeding with
respect to Taxes. Such cooperation shall include the retention and (upon the other party’s
request) the provision of records and information which are reasonably relevant to any such audit,
litigation or other proceeding and making employees available on a mutually convenient basis to
provide additional information and explanation of any material provided hereunder. The party that
is liable for the payment of any Taxes under this Agreement shall control such audit, litigation or
other proceeding with respect to such Taxes and shall control the decision as to any settlement.
Such party shall also pay all costs and expenses in connection with such audit, litigation or other
proceeding (including any cost of cooperation of the other party). The Company and Sellers agree
(i) to retain all books and records with respect to Tax matters pertinent to the Company and the
Subsidiary relating to any taxable period beginning before the Closing Date until the expiration of
the statute of limitations (and, to the extent notified by Purchaser or Sellers, any extensions
thereof) of the respective taxable periods, and to abide by all record retention agreements entered
into with any taxing authority, and (ii) to give the other party reasonable written notice prior to
transferring, destroying or discarding any such books and records and, if the other party so
requests, the Company or Sellers, as the case may be, shall allow the other party to take
possession of such books and records.




          (e) Tax Treatment of Purchase and Sale of Shares. Each of Purchaser, Company and
Sellers agree to treat the portion of the Purchase Price received by Sellers pursuant to this
Agreement which is (i) attributable to proceeds of any debt financing arranged by Purchaser in
connection with the purchase and sale of Shares as a redemption of such portion of each Sellers’
Shares and (ii) not described in clause (i) as a sale of such portion of each Sellers’ Shares, in
each case, for all Tax purposes unless otherwise required by a Governmental Entity. It is the
intent of the parties that such redemption and sale shall give rise to capital treatment to the




-37-









 







Sellers for federal income tax purposes and each of Purchaser, the Company and Sellers shall
report consistently therewith on any relevant Tax Returns.




          (f) Certain Taxes. All transfer, documentary, sales, use, stamp, registration and
other such Taxes and fees (including any penalties and interest) incurred in connection with this
Agreement shall be paid by Purchaser when due, and Purchaser will, at their own expense, file all
necessary Tax Returns and other documentation with respect to all such transfer, documentary,
sales, use, stamp, registration and other Taxes and fees, and, if required by applicable law,
Sellers will, and will cause their affiliates to, join in the execution of any such Tax Returns and
other documentation.




     6.8 Further Assurances. Each party will execute, acknowledge and deliver such
documents and instruments reasonably requested by the other party, and will take any other action
consistent with the terms of this Agreement that may reasonably be requested by the other party,
for the purpose of giving effect to the transactions contemplated by this Agreement.



     6.9 Post-Closing Maintenance of Records. The Purchaser shall: (i) maintain all books
and other records, including without limitation, Tax Returns of the Company (the “Records”)
for seven (7) years after the Closing Date, (ii) grant the Sellers access to the Records at any
reasonable time, and from time to time, upon request by the Sellers in connection with any
reasonable business purpose; and (iii) permit Sellers to make copies of such Records for the
foregoing purposes, at Sellers’ expense. The Sellers may retain copies of such Records as they
deem necessary after the Closing.



     6.10 Employees and Employee Benefit Plans.



          (a) Purchaser agrees that for a one year period following the Closing it shall, or shall cause
one of its Affiliates to, provide the Affected Employees with employee benefits and compensation
that are substantially comparable in the aggregate to those provided to other similarly situated
employees of the Purchaser or those provided as of the Closing Date to the Affected Employees by
the Company. For purposes of this Agreement, “Affected Employees” shall mean Employees and former
employees of the Company as of the Closing Date and, if applicable, any of their dependents,
beneficiaries, qualified beneficiaries under COBRA and alternate payees.




          (b) Nothing contained herein shall obligate Purchaser to employ, or offer to employ, or cause
the Company to continue to employ, any current or former employee of the Company, to retain any
Employees for any specific period, to institute or maintain any levels of compensation or benefit
plans or arrangements, or otherwise to take or continue any actions with respect to the Employees
after the Closing, it being understood that no Employee is intended to or shall receive by reason
of this Agreement any direct or third party beneficiary rights against Purchaser.




          (c) Except as expressly set forth in this Agreement, Purchaser shall have at all times
complete discretion to determine the specific benefit plans, programs, policies and arrangements to
be provided to Employees; however, Employees shall be given credit for purposes of eligibility and
vesting under each employee benefit plan, program, policy or




-38-









 







arrangement of Purchaser or any Affiliate thereof in which the Employees are eligible to
participate for all service with the Company (to the extent such credit was given for a similar
purpose by a comparable employee benefit plan, program, policy or arrangement, if any, of the
Company). Purchaser shall take all reasonable steps to ensure that each Employee’s vacation and
personal time off accrued through the Closing Date shall continue to be honored after the Closing
Date.




          (d) At or prior to the Closing, the Company shall cause all amounts due, if any, under its
2007 Participation Plan, 2007 bonus plan and change of control agreements to be paid and such plans
to be terminated with no further obligation to the Company.




     6.11 Updating of Schedules. Sellers and the Company shall, from time to time prior to
the Closing, by notice in accordance with this Agreement, supplement or amend the Disclosure
Schedule to this Agreement (the “Disclosure Supplement”) (i) with respect to any fact,
change, condition or circumstance that occurs after the date of this Agreement which, if existing
or occurring before or at the date of this Agreement, would have been required to be set forth or
described in the Disclosure Schedule or (ii) with respect to any fact that existed as of the date
of this Agreement, to correct any disclosures that were inaccurately made or to add any disclosures
that were inaccurately omitted. With respect to any fact, change, condition or circumstance
described in clause (i) above, (x) if the fact, change, condition or circumstance contained in the
Disclosure Supplement would cause the condition contained in Section 7.1 not to be met,
then Purchaser must either terminate this Agreement or accept such Disclosure Supplement as an
amendment to the Disclosure Schedule and (y) if the fact, change, condition or circumstance
contained in the Disclosure Supplement would not cause the condition contained in Section
7.1 not to be met, then Purchaser may seek any indemnification available to Purchaser under
this Agreement following the Closing with respect to such fact, change, condition or circumstance;
provided, however, that, Purchaser shall not be entitled to seek indemnification with respect to
any such fact, change, condition or circumstance under this Agreement that occurs in the ordinary
course of the Company’s business and was not the result of actions taken in violation of
Section 6.2 (it being understood and agreed that the threat or the commencement of
litigation in the ordinary course will, among other matters, be exempted from any indemnification
obligation pursuant to clause (y)). With respect to any items of the type described in clause (ii)
above, if the fact, change, condition or circumstance contained on the Disclosure Supplement would
not prevent the fulfillment of the condition contained in Section 7.1, or if such fact,
change, condition or circumstance would prevent the fulfillment of the condition contained in
Section 7.1 but the parties still allow the Closing to occur, Purchaser may seek any
indemnification available to Purchaser under this Agreement following Closing with respect to such
fact, change, condition or circumstance. For the avoidance of doubt, no disclosure by Sellers or
the Company under this Section, however, shall be deemed to amend or supplement the Disclosure
Schedule or to prevent or cure any breach of representation or warranty or breach of covenant for
purposes of Sections 7.1 or 7.2.



     6.12 Covenant Not to Hire Employees.



          (a) To further ensure that Purchaser receives the expected benefits of acquiring the Shares,
the Sellers agree that (subject to the other terms of this Section 6.12), throughout the
period that begins on the Closing Date and ends on the second anniversary of the




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Closing Date (the “Non-Solicit Period), the Sellers will not, and the Sellers will
cause each of their Controlled Portfolio Companies not to, directly or indirectly solicit for
employment or hire any individual who is a Key Employee except that nothing herein prohibits the
Sellers or any of their Controlled Portfolio Companies from any (A) general solicitation for
employment (including in newspapers or magazines, over the internet or by any search or employment
agency) if not specifically directed towards such Key Employees, or (B) solicit (or thereafter
hire) a Key Employee who at the time of solicitation is not an employee of the Company.




          (b) The Sellers specifically acknowledge and agree that (1) this Section 6.12 and each
term hereof are reasonable and necessary to ensure that the Purchaser receives the expected
benefits of acquiring the Shares, (2) the Purchaser has refused to enter into this Agreement in the
absence of this Section 6.12 and (3) breach of this Section 6.12 will harm the
Purchaser to such an extent that monetary damages alone would be an inadequate remedy. Therefore,
in the event of a breach by the Seller of this Section 6.12, the Purchaser (in addition to
all other remedies the Purchaser may have) will be entitled to seek a temporary restraining order,
injunction and other equitable relief (without posting any bond or other security) restraining the
Sellers from committing or continuing such breach.




     6.13 Audit. The Company shall retain Grant Thornton to audit the financial statements
of the Company for the 2007 fiscal year. The fees and expenses of Grant Thornton (“Audit
Payments”) shall be the responsibility of the Sellers and shall not be included in the
calculation of Net Working Capital. The Audit Escrow Amount will be held by the Escrow Agent
pursuant to the terms of the Audit Escrow Agreement. The Company shall pay any such Audit Payments
out of the funds deposited by Sellers with the Escrow Agent pursuant to the Audit Escrow Agreement.
If such Audit Escrow Amount is insufficient to cover the entire amount of such Audit Payments,
then Sellers shall immediately reimburse the Company for the amount of any such Audit Payments paid
by the Company in excess of the Audit Escrow Amount.



     6.14 Severance Payment. For a period of 200 days after the Closing (the
“Severance Period”), the Company, or the Purchaser on behalf of the Company, may make
severance payments and/or payments for breach of employment contract (collectively, the
“Post-Closing Severance Payments”), as applicable, to any Employee employed after the
Closing Date who may be terminated by the Company during the Severance Period. From and after the
Closing, Sellers shall be responsible for one-half of the Post-Closing Severance Payments made by
Purchaser or the Company, which one-half share shall not exceed $336,500 (the “Sellers’
Severance Escrow Amount”). Immediately prior to Closing, the Sellers will deposit into a
separate escrow with the Escrow Agent $673,000 to be held by the Escrow Agent pursuant to the terms
of the Severance Escrow Agreement. Purchaser or the Company may at any time during the Severance
Period, from time to time, upon notice to the Escrow Agent use all or any portion of the Severance
Escrow Amount to make, or to reimburse the Company for payment of, Post-Closing Severance Payments
and shall provide reasonable evidence of the amount and recipient of any Post-Closing Severance
Payments to Sellers upon request.



     6.15 Subordination Agreements. Sellers shall use commercially reasonable efforts to
negotiate definitive subordination agreements with the Lenders relating to the Seller Notes and
Seller Convertible Notes, which subordination agreements will provide, among other



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matters, that all amounts due under such notes may be paid on maturity or acceleration, if
Purchaser is in compliance with certain financial covenants in the agreements governing the senior
indebtedness.




     6.16 Earth Station License.



          (a) The Company (prior to Closing) and the Sellers shall use their commercially reasonable
efforts to obtain the consent of the FCC to assign the Earth Station License from the Company to
GeoLogic Management, Inc., a Delaware corporation wholly owned by the Sellers (the “FCC
SPE”), whose sole purpose shall be to hold the Earth Station License and to enter into and
perform in accordance with the terms and conditions of the Earth Station Management Agreement.




          (b) As soon as reasonably practicable after execution of this Agreement, the Sellers and the
Company shall file the FCC Application. The Sellers and the Company agree to file the FCC
Application with all reasonable diligence and take all steps reasonably necessary and otherwise use
their commercially reasonable efforts to obtain the FCC Consent as expeditiously as possible,
including the filing of all appropriate or necessary supplemental filings and amendments and
vigorously contesting and opposing any petitions, objections, challenges or requests for
reconsideration thereof, provided however, that neither the Company nor the Sellers shall have any
obligation to participate in an evidentiary hearing on the FCC Application. No party hereto shall
take any action not contemplated by this Agreement that such party knows or would reasonably be
expected to know would adversely affect obtaining the FCC Consent. All fees and expenses related
to the preparation and filing of the FCC Application (including FCC filing fees), other than the
fees and expenses of the Company’s attorneys, shall be the responsibility of the Sellers. Within
10 business days after the FCC Application becomes a Final Order, the Sellers will (i) cause the
FCC SPE to assign the license to the Company for an amount equal to $10 by executing the Assignment
and Assumption Agreement in the form set forth as Exhibit 6.16 hereto and (ii) Sellers and the
Company shall take all steps necessary to notify the FCC within 15 business days thereof that the
FCC Application has been consummated.




          (c) In the event the FCC fails or refuses to issue the FCC Consent on or before January 1,
2009 and such failure or refusal is due to any action or failure to act by either: (a) the Sellers
or their Affiliates (excluding the Company), (b) the Company prior to Closing, or (c) the FCC or
members of its staff, then the Sellers shall use their reasonable best efforts to secure for the
Company either (x) an earth station license from the FCC in the Company’s own name and stead that
has technical parameters that allow the Company to operate its Earth Station business in the
substantially the same manner as it currently operates such business (with no added cost or expense
to the Company or any change in the service area or any modifications to Company’s products)
(“Option X”), or (y) an agreement with a third party entity (a “Third Party”) that
would result in the assignment or transfer of the Earth Station License from the FCC SPE to such
Third Party, but would allow the Company to manage the Earth Station business in substantially the
same manner (with no added cost or expense to the Company or any change in the service area or any
modifications to Company’s products) in which such business currently is being conducted
(“Option Y,” either “Option X” or “Option Y,” the “License
Alternative”). Sellers shall be responsible for all fees and expenses related to the License
Alternative, including costs associated with any agreement and/or ensuring that any




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application filed at the FCC has become a Final Order. In the event that Sellers pursue
Option Y, Sellers shall prepare and file an application for the assignment or transfer of the Earth
Station License to a Third Party, and shall file all appropriate or necessary supplemental filings
and amendments and vigorously contest and oppose any petitions, objections, challenges or requests
for reconsideration thereof, provided however, that the Sellers shall not have any obligation to
participate in an evidentiary hearing on such assignment or transfer application to the Third
Party. The Purchaser and the Company shall cooperate with the Sellers in seeking to obtain the
License Alternative at the Sellers’ sole cost and expense. Notwithstanding the foregoing, the
Earth Station Management Agreement shall remain in full force and effect until any application
filed pursuant to a License Alternative shall have become a Final Order and the License Alternative
shall have been implemented, and Sellers shall cause the FCC SPE to fulfill its obligations under
the Earth Station Management Agreement.



          (d) In the event the FCC fails or refuses to issue the FCC Consent on or before January 1,
2009 and such failure or refusal is primarily due to any action or failure to act by either: (a)
the Purchaser or its Affiliates (excluding the Company), or (b) the Company following Closing, then
the Sellers shall have no further obligation, other than to: (x) cooperate with the Purchaser and
the Company in their efforts to secure the License Alternative at the Company’s sole cost and
expense and (y) to cause the FCC SPE to fulfill its obligations under the Earth Station Management
Agreement, which shall remain in full force and effect.



          (e) Each of the Sellers and the FCC SPE agree to comply with their respective obligations
under the terms of the Earth Station Management Agreement. The Sellers and the FCC SPE
specifically acknowledge and agree that (1) the provisions of the Earth Station Management
Agreement are reasonable and necessary to ensure that the Purchaser receives the expected benefits
of acquiring the Shares, (2) the Purchaser has refused to enter into this Agreement in the absence
of this Section 6.16(e) and (3) breach of this Section 6.16(e) will harm the
Purchaser to such an extent that monetary damages alone would be an inadequate remedy. Therefore,
in the event of a breach by the Sellers or the FCC SPE of this Section 6.16(e), the
Purchaser (in addition to all other remedies the Purchaser may have) will be entitled to seek a
temporary restraining order, injunction and other equitable relief (without posting any bond or
other security) restraining the Sellers and the FCC SPE from committing or continuing such breach.




     6.17 Financing.



          (a) Purchaser shall use its commercially reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and
obtain the Financing on the terms and conditions described in the Financing Commitments, including
commercially reasonable efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy
on a timely basis all conditions applicable to Purchaser to obtaining the Financing, (iii)
negotiate definitive agreements with respect thereto on terms and conditions contained in the
Financing Commitments or other terms that would not materially and adversely impact the ability of
Purchaser to timely consummate the transactions contemplated hereby and (iv) consummate the
Financing at or prior to the Closing (including by enforcing all of its rights under the Financing
Commitments). Purchaser shall not agree to or permit any amendment, supplement or other
modification of, or waive any of its rights under, any Financing




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Commitment or any definitive agreements related to the Financing, in each case, without the
Sellers’ prior written consent (which consent shall not be unreasonably withheld or delayed),
except any such amendment, supplement or other modification to the Financing Commitments that would
not (A) materially reduce the aggregate amount of the Financing below that amount required to
consummate the purchase of the Shares and the other transactions contemplated by this Agreement,
(B) materially adversely amend or expand any conditions to funding the Financing that are contained
in the Financing Commitments, or (C) reasonably be expected to prevent or materially impede the
consummation of the Financing or the transactions contemplated by this Agreement. Upon any such
amendment, supplement or modification of the Financing Commitments in accordance with this Section
6.17, Purchaser shall provide a copy thereof to the Sellers and the term “Financing Commitments”
shall mean the Financing Commitments as so amended, supplemented or modified.




          (b) In the event all or any portion of the Financing becomes unavailable on the terms and
conditions described in or contemplated by the Financing Commitments for any reason, Purchaser
shall use its commercially reasonable efforts to arrange to obtain, as promptly as practicable
following the occurrence of such event alternative financing from alternative sources (the
“Alternative Financing”) in an amount sufficient to consummate the transactions
contemplated by this Agreement which in Purchaser’s reasonable judgment would not involve financial
terms that are less beneficial, and other terms that are less beneficial in the aggregate, to
Purchaser, would not involve any conditions to funding the Financing that are not expressly
contained in the Financing Commitments and would not reasonably be expected to prevent or
materially impede the consummation of the Financing or the transactions contemplated by this
Agreement.




          (c) Purchaser shall give the Sellers prompt written notice of any breach by any party of the
Financing Commitments (or commitments for any Alternative Financing) of which Purchaser becomes
aware or any termination of the Financing Commitments (or commitments for any Alternative
Financing). Purchaser shall keep the Sellers informed on a reasonably current basis in reasonable
detail of the status of its efforts to arrange the Financing (or Alternative Financing) and, to the
extent permitted, provide to the Sellers copies of all documents related to the Financing (or
Alternative Financing).




ARTICLE VII

CONDITIONS PRECEDENT TO PURCHASER’S PERFORMANCE




     The obligation of Purchaser to consummate the transactions contemplated by this Agreement is
subject to the satisfaction, at or before the Closing Date, of each of the following conditions,
unless waived in writing by Purchaser:



     7.1 Accuracy of Sellers’ and the Company’s Representations and Warranties. The
representations and warranties of Sellers and the Company contained in this Agreement shall be true
and correct as of the Closing Date as though made at that time (without regard to any “material,”
“materiality” or “Material Adverse Effect” qualifications included therein (other than defined
terms such as “Material Customers” and “Material Contracts”) and except that those representations
and warranties that speak as to a stated date, in which case such representation shall be true and
correct as of such date), except to the extent that the failure of the



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representations and warranties, taken as a whole, to be true and correct would not reasonably
be expected to have a Material Adverse Effect, to materially delay the Closing or to materially and
adversely affect the ability of Sellers to consummate the transactions contemplated by this
Agreement.




     7.2 Performance of Sellers’ and the Company’s Covenants. All covenants, agreements
and obligations required by the terms of this Agreement to be performed, satisfied or complied with
by Sellers or the Company at or before the Closing Date shall have been duly and properly performed
and complied with in all material respects at or before the Closing Date.



     7.3 No Governmental Order or Adverse Law. There must not be any applicable Law that
restrains, prohibits or enjoins (whether temporarily, preliminarily or permanently) consummation of
any transaction contemplated herein that has been enacted, issued, promulgated, enforced or
entered. There must not be any pending or threatened proceeding, order, writ, judgment,
injunction, decree, stipulation, determination or award by any Governmental Authority that seeks to
restrain, prohibit or enjoin (whether temporarily, preliminarily or permanently), consummation of
any transaction contemplated herein.



     7.4 Deliverables. Purchaser shall have received from each Seller each of the
deliverables described in Section 10.2.



     7.5 Landlord Consents. Purchaser shall have received, with respect to each Lease the
consent of the landlord under each Lease to the transactions contemplated by this Agreement, to the
extent required by such Lease.



     7.6 Escrow Agreements. U.S. Bank National Association (the “Escrow Agent”)
must have executed and delivered each of the Escrow Agreements to each party.



     7.7 Earth Station License. The Sellers shall have transferred the Earth Station
License from the Company to the FCC SPE in accordance with Section 6.16 hereof and
delivered to Purchaser the Earth Station Management Agreement executed by the FCC SPE.



     7.8 No Material Adverse Effect. Since the date of this Agreement, there must not have
been any Material Adverse Effect on the Company.



     7.9 Financing. Purchaser shall have received the Financing contemplated by the
Financing Commitments on the terms set forth in the Financing Commitments.



ARTICLE VIII

CONDITIONS PRECEDENT TO SELLERS’ PERFORMANCE




     The obligation of Sellers to consummate the transactions contemplated by this Agreement is
subject to the satisfaction, at or before the Closing Date, of each of the following conditions,
unless waived in writing by Sellers:



     8.1 Accuracy of Purchaser’s Representations and Warranties. The representations and
warranties of Purchaser contained in this Agreement shall be true and correct



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when made and on and
as of the Closing Date as though made at that time (without regard to any
“materiality” qualifications included therein), except to the extent that the failure of the
representations and warranties, taken as a whole, to be true and correct would not reasonably be
expected to materially delay the Closing or to materially and adversely affect the ability of
Purchaser to consummate the transactions contemplated by this Agreement.




     8.2 Performance of Purchaser’s Covenants. All covenants, agreements and obligations
required by the terms of this Agreement to be performed, satisfied or complied with by Purchaser at
or before the Closing Date shall have been duly and properly performed and complied with by
Purchaser at or before the Closing Date.



     8.3 No Governmental Order or Adverse Law. There must not be any applicable Law that
restrains, prohibits or enjoins (whether temporarily, preliminarily or permanently) consummation of
any transaction contemplated herein that has been enacted, issued, promulgated, enforced or
entered. There must not be any pending or threatened proceeding, order, writ, judgment,
injunction, decree, stipulation, determination or award by any Governmental Authority that seeks to
restrain, prohibit or enjoin (whether temporarily, preliminarily or permanently), consummation of
any transaction contemplated herein.



     8.4 Deliverables. Each Seller shall have received from Purchaser each of the
deliverables described in Section 10.3.



     8.5 Escrow Agreements. The Escrow Agent must have executed and delivered each of the
Escrow Agreements to each party.



     8.6 Subordination Agreements. The Sellers and Lenders shall have executed and
delivered subordination agreements relating to the Seller Notes and Seller Convertible Notes, in
form and substance reasonably satisfactory to the Sellers.



ARTICLE IX

TERMINATION PRIOR TO CLOSING




     9.1 Termination. This Agreement and the transactions contemplated hereby may be
terminated at any time prior to Closing:



          (a) By the mutual written consent of Purchaser and Sellers;




          (b) By either Purchaser or Sellers, by written notice to the other party if the Closing shall
not have occurred on or before March 31, 2008; provided, however, that neither
party may terminate this Agreement pursuant to this Section 9.1(b) if the failure to
consummate the transactions contemplated hereby prior to such date is the direct or indirect result
of any breach of any covenant, representation or warranty of such party or because any of the
conditions precedent to the obligations of the other party have not been satisfied in all material
respects due to any action or failure to act by such party;




          (c) By Purchaser, by prior written notice to the Sellers, if (1) any of the Sellers or the
Company commits a material breach of any of the terms of this Agreement, and




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(2) such breach is not
cured within fifteen (15) days after Purchaser has notified Sellers of its intent to terminate
pursuant to this Section 9.1(c);




          (d) By Sellers, by prior written notice to Purchaser, if Purchaser commits a material breach
of any of the terms of this Agreement, and (2) such breach is not cured within fifteen (15) days
after the Sellers have notified Purchaser of their intent to terminate pursuant to this Section
9.1(d); or




          (e) By Sellers, by written notice to Purchaser, if the Financing has not been obtained by the
Purchaser on or before January 31, 2008.




     9.2 Effect on Obligations. Termination of this Agreement pursuant to Section
9.1 shall terminate all obligations of the parties hereunder and this Agreement shall become
void and have no effect without any liability on the part of any party, except for the obligations
under Sections 6.4 (Confidentiality), 6.5 (Publicity), and
11.2 (Indemnification Obligations), and Article XII (Miscellaneous
Provisions); provided, however, that termination shall not relieve any party
defaulting or breaching this Agreement from any liability for such default or breach (or be deemed
a waiver of any right of the non-defaulting or non-breaching party in connection therewith). The
exercise of a right of termination of this Agreement is not an election of remedies.



ARTICLE X

THE CLOSING




     10.1 Closing. Subject to the satisfaction and/or waiver of the conditions set forth
herein, the consummation of the sale and purchase of the Shares (the “Closing”) shall occur
on the second business day following satisfaction and/or waiver of the conditions to the Closing
(other than conditions that by their nature are to be satisfied at Closing, but subject to the
satisfaction or waiver of such conditions at Closing) or on such other date as may be mutually
agreed to by the parties (the “Closing Date”). Closing will be effective as of 11:59 p.m.
on the Closing Date.



     10.2 Sellers’ Obligations. At the Closing, each Seller shall deliver to Purchaser:



          (a) The certificate(s) representing the Shares being sold by such Seller, accompanied by stock
transfer power(s), duly executed on behalf of such Seller, and otherwise in a form acceptable for
transfer on the books of the Company and approved in advance by the Purchaser (such approval not to
be unreasonably withheld);




          (b) A certificate, dated the Closing Date, from the Company and such Seller and signed by an
authorized officer, certifying that the conditions specified in Section 7.1 and Section
7.2 above have been fulfilled;




          (c) the written resignation of each director and of each officer who is not an employee of the
Company, with each such resignation effective as of the Closing;





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          (d) the Escrow Agreements, dated the Closing Date and executed by such Seller;




          (e) the original minute books and stock ownership records of the Company; and




          (f) a written release of all obligations of the Company under, and termination of, the Credit
Agreement (the “Credit Agreement”) dated September 14, 2005, by and among the Company, the lenders
that are signatories thereto and Wells Fargo Foothill, Inc., as the arranger and administrative
agent, including a release of all Collateral (as defined in the Credit Agreement) and liens
securing the Company’s obligations under the Credit Agreement.




     10.3 Purchaser’s Obligations. At the Closing, Purchaser shall deliver to each Seller:



          (a) The Purchase Price payable to such Seller in accordance with Section 2.2;




          (b) A certificate, dated the Closing Date, from Purchaser and signed by an authorized officer,
certifying that the conditions specified in Section 8.1 and Section 8.2 above have
been fulfilled;




          (c) The Escrow Agreements, dated the Closing Date and executed by such Seller; and




          (d) The Seller Notes and the Seller Convertible Notes, in substantially the form of
Exhibit 10.3(d), as set forth in Section 2.3(b), each executed by Purchaser.




     10.4 The Company’s Obligations. At the Closing, the Company shall deliver to
Purchaser “pay-off letters” from each Person to whom Indebtedness is owed that is to be paid at
Closing, setting forth the aggregate amount required to be paid to such Person and providing an
agreement of such Person to release any and all Encumbrances secured by such Indebtedness upon the
payment of the amount set forth in the applicable payoff letter.



ARTICLE XI

INDEMNIFICATION




     11.1 Survival of Representations and Warranties. All representations and warranties
under this Agreement shall survive the Closing through the date that is 18 months after the Closing
Date, at which date such representations and warranties shall terminate; provided,
however, that (a) the representations and warranties set forth in Sections 3.1,
3.2, 3.3, 3.21, 4.1, 4.2 and 4.3 (collectively, the
“Specified Representations”) shall survive until the expiration of all applicable statutes
of limitations, and (b) the representations and warranties set forth in Sections 3.14 and
3.17 shall survive the Closing through the date that is three years after the Closing Date.



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     11.2 Indemnification Obligations.



          (a) Indemnification by Sellers.




               (i) Sellers shall, severally and not jointly, indemnify and hold harmless Purchaser and
the Company (after Closing) and their officers, directors, members and employees (collectively,
the “Purchaser Indemnified Parties”) from and against, and shall reimburse the
Purchaser Indemnified Parties for, any and all Damages resulting from any untruth, inaccuracy
or breach of representation or warranty made by the Company in Article III or any covenant of
the Company contained in this Agreement or any Ancillary Document to be performed prior to the
Closing. Each Seller shall be liable only for their pro rata (based on ownership of the
Company at the Closing) portion of claims under this Section 11.2 (a)(i).



               (ii) Each Seller shall, severally and not jointly, indemnify and hold harmless the
Purchaser Indemnified Parties from and against, and shall reimburse the Purchaser Indemnified
Parties for, any and all Damages resulting from (A) any untruth, inaccuracy or breach of a
representation or warranty made by such Seller in Article IV or (B) any breach or default in
the performance by such Seller of any covenant or agreement of such Seller contained herein, in
the Disclosure Schedule or in the Escrow Agreements, provided that indemnification with respect
to Section 6.16 of this Agreement or the Earth Station Management Agreement shall be governed
by Section 11.2(a)(iii) and not this clause.



               (iii) Sellers shall, severally and not jointly, indemnify and hold harmless Purchaser
Indemnified Parties from and against, and shall reimburse the Purchaser Indemnified Parties
for, any and all Damages resulting from, arising out of, based on, or relating to a breach of
the covenant in Section 6.16 hereto. From and after the Closing, Sellers and FCC SPE
shall, severally and not jointly, indemnify and hold harmless Purchaser Indemnified Parties
from and against, and shall reimburse the Purchaser Indemnified Parties for, any and all
Damages resulting, arising out of, based on, or relating to any breach of any covenant or
agreement of FCC SPE under the Earth Station Management Agreement, except to the extent the
Seller and FCC SPE Indemnified Parties are otherwise indemnified by the Purchaser or the
Company therefor under Section 11.2(b). Each Seller shall be liable only for its pro rata
(based on ownership of the Company at Closing) portion of claims under this Section
11.2(a)(iii).



          (b) Indemnification by Purchaser.




               (i) Purchaser shall, and from and after the Closing, the Company shall, indemnify and hold
harmless Sellers, their Affiliates and any of their respective officers, directors and
employees (collectively, the “Seller Indemnified Parties”) from and against, and shall
reimburse the Seller Indemnified Parties for, any and all Damages, resulting from (i) any
untruth, inaccuracy or breach of representation, warranty, agreement, or covenant of the
Purchaser in this Agreement, the Disclosure Schedule or the Escrow Agreement, or (ii) any
liability arising from or relating to the conduct of the business of the Company from and after
the Closing Date, except to the extent Purchaser is otherwise indemnified by the Sellers
therefor under Section 11.2(a).



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               (ii) From and after Closing, the Purchaser and the Company shall indemnify and hold
harmless Sellers and FCC SPE, their Affiliates and any of their respective officers, directors
and employees (collectively, the “Seller and FCC SPE Indemnified Parties”) from and against,
and shall reimburse the Seller and FCC SPE Indemnified Parties for, any and all Damages,
resulting from, arising out of, based on or relating to (i) any gross negligence or willful
misconduct of the Company in the performance of the Management Services (as defined in the
Earth Station Management Agreement), or (ii) any breach of any covenant or agreement of the
Company under the Earth Station Management Agreement, except to the extent Purchaser is
otherwise indemnified by the Sellers therefor under Section 11.2(a)



          (c) Limitations on Liability. Notwithstanding the rights of the Indemnified Parties
to indemnification under this Article XI, and except with respect to claims for fraud,
claims for breaches of covenants (subject to the limitations provided below), Indemnifying Party’s
indemnification obligations to the Indemnified Party shall be limited as follows:




               (i) Indemnifying Party shall only be liable for Damages that are based on an untruth,
inaccuracy or breach of representation or warranty in this Agreement, the Disclosure Schedule
or any Ancillary Document, other than a breach of the Specified Representations and claims
under Sections 11.2(a)(iii) and 11.2(b)(ii) (which shall not be so limited), if and to
the extent such Damages exceed one-half percent (.5%) of the Purchase Price in the aggregate
(“Deductible”);



               (ii) the aggregate amount of Seller’s liability for Damages under this Article XI,
other than for breaches of the Specified Representations and claims under Section
11.2(a)(iii) (which shall not be so limited), shall not exceed seventeen and one half
percent (17.5%) of the Purchase Price (“Cap”);



               (iii) the aggregate amount of Purchaser’s liability for Damages under this Article XI,
other than for breaches of the representations and warranties set forth in Sections
5.1, 5.2, 5.4 and 5.5 and claims under Section 11.2(b)(ii)
(which shall not be so limited), shall not exceed the Cap;



               (iv) the aggregate amount of Sellers’ and FCC SPE’s liability for Damages for claims under
Section 11.2(a)(iii) shall not exceed $17.5 million;



               (v) the aggregate amount of Purchaser’s liability for Damages for claims under Section
11.2(b)(ii) shall not exceed $17.5 million; and



               (vi) the aggregate amount of each Seller’s liability for Damages for all claims as a
result of, or based upon or arising from this Agreement or any Ancillary Document (including
the Earth Station Management Agreement, but excluding the Escrow Agreements) or the
transactions contemplated hereby or thereby shall not in any event exceed the Purchase Price,
in the aggregate, received by such Seller; and



               (vii) the aggregate amount of the Purchaser’s and the Company’s (after the Closing)
liability for Damages for all claims as a result of, or based



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upon or arising from this Agreement or any Ancillary Document (including the Earth Station
Management Agreement, but excluding the Escrow Agreements) or the transactions contemplated
hereby or thereby shall not in any event exceed the Purchase Price, in the aggregate.



          (d) Claims for Indemnity. Whenever a claim for Damages shall arise for which an
Indemnified Party shall be entitled to indemnification hereunder other than a third party claim
addressed by Section 11.2(e), such Indemnified Party shall notify the Indemnifying Party in
writing within fifteen (15) days of the first receipt of notice of such claim, and in any event
within such shorter period as may be necessary for the Indemnifying Party to take appropriate
action to resist such claim. Such notice shall specify in reasonable detail the facts and
circumstances known to the Indemnified Party regarding the claim and shall explain in reasonable
detail the basis on which the Indemnified Party claims a right to indemnity, including citation to
relevant sections of this Agreement, and, if estimable, shall estimate the amount of the liability
arising therefrom. The failure to provide such notice shall not result in a waiver of any right to
indemnification hereunder except to the extent, and only to the extent, the Indemnifying Party is
able to demonstrate it was prejudiced by such failure. If the Indemnifying Party shall be duly
notified of such indemnity claim, the parties shall attempt to settle and compromise the same, or
if unable to do so within thirty (30) days of the Indemnified Party’s delivery of notice of
indemnity claim, the parties may pursue such legal proceedings as may be lawfully available to
them. Any rights of indemnification established by reason of such settlement or proceedings shall
thereafter be paid and satisfied by the Indemnifying Party promptly after such date that the
indemnified amount is finally determined.




          (e) Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice
from the Indemnified Party with respect to any claim of a third party against the Indemnified Party
for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have
the right to assume the defense of such claim, except if the aggregate amount of the potential
obligations of the Indemnified Party regarding such claim is reasonably likely to exceed the
maximum obligations of the Indemnifying Party under this Agreement regarding such claim. The
Indemnifying Parties and the Indemnified Parties shall cooperate to the extent reasonably requested
by the other in defense or prosecution thereof and shall furnish such records, information and
testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as
may be reasonably requested by the other party in connection therewith. To elect to conduct such
defense, the Indemnifying Party must give written notice of such election to the Indemnified Party
within 30 days (or within the shorter period, if any, during which a defense must be commenced for
the preservation of rights) after the Indemnified Party gives the corresponding initial claim
notice to the Indemnifying Party (otherwise, such right to conduct such defense will be deemed
waived). If the Indemnifying Party validly makes such election, it will nonetheless lose such
right to conduct such defense if it fails to continue to actively and diligently conduct such
defense. Also, if the Indemnifying Party validly makes such election, the Indemnified Party shall
have the right to employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Indemnified Party, and will have the right to receive copies
of all notices, pleadings or other similar submissions regarding such defense. If the Indemnifying
Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party
will keep the Indemnified Party reasonably informed of all matters material to such defense and
third party claim at all




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stages thereof, and shall have the right to settle any claim for which indemnification has
been sought and is available hereunder; provided, however, that, to the extent that such settlement
requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action
or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such
claim without the prior written consent of the Indemnified Party (which shall not be unreasonably
withheld, conditioned or delayed). If the Indemnifying Party does not assume the defense of a
third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified
Party shall have the right to assume control of the defense of such claim through counsel of its
choice in any manner that the Indemnified Party reasonably deems appropriate, the reasonable costs
of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s
right of indemnification is ultimately established through settlement, compromise or other legal
proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third
party for which it has an established right to indemnification from the Indemnifying Party without
first obtaining the prior written consent of the Indemnifying Party, such consent not to be
unreasonably withheld, conditioned or delayed.




     11.3 Mitigation. An Indemnified Party shall use commercially reasonable efforts to
mitigate the Damages for which such Indemnified Party is or may become entitled to be indemnified
hereunder, including pursuing or attempting to recover any insurance proceeds under any applicable
insurance policy. Notwithstanding anything in this Agreement to the contrary, the amount of any
Damages of any Person under this Article XI shall be net of the amount, if any, received by the
Indemnified Party from any third party, including without limitation, any insurance company or
other insurance provider, in each case in respect of or attributable to the Damages suffered
thereby (a “Third Party Reimbursement”). If, after receipt by the Indemnified Party of any
indemnification payment hereunder, such Indemnified Party receives a Third Party Reimbursement in
respect of the same Damages for which indemnification was made and such Third Party Reimbursement
was not taken into account in assessing the amount of indemnification, then the Indemnified Party
shall turn over all of such Third Party Reimbursement to the Indemnifying Party up to the amount of
the indemnification paid pursuant hereto.



     11.4 Exclusive Remedy. Except for claims for fraud or as otherwise expressly provided
in this Agreement, the indemnification provided in this Article XI will constitute the
exclusive remedy of the Purchaser Indemnified Parties and the Seller Indemnified Parties, as the
case may be, and their respective assigns, from and against any and all Damages asserted against,
resulting to, imposed upon or incurred or suffered by, any of them, directly or indirectly, as a
result of, or based upon or arising from the transactions contemplated by this Agreement or any
Ancillary Document (including the Earth Station Management Agreement, but excluding the Escrow
Agreements) including without limitation, any breach of any representation or warranty herein or
the non-fulfillment of any agreement or covenant herein or in any other agreement, document, or
instrument required hereunder including the Earth Station Management Agreement. Purchaser, FCC SPE
and each Seller hereby waives, to the fullest extent permitted under applicable Law, any and all
rights, claims, and causes of action it may have against any other party, or any of such other
party’s Affiliates, to the contrary.



     11.5 Damages. Each party agrees that it is not entitled to recover and hereby waives
any claim with respect to, and will not seek to recover any exemplary, punitive,



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incidental, special or consequential damages or any claim for lost profits; provided,
however, that the foregoing will not apply to any breach of Section 6.12,
Section 6.4(b) or any third party claim pursuant to which such damages are awarded to a
third party.



     11.6 No Double Recovery. Notwithstanding the fact that any party may have the right
to assert claims for indemnification under or in respect of more than one provision of this
Agreement in respect of any fact, event, condition or circumstance, no party shall be entitled to
recover the amount of any Damages suffered by such party more than once, regardless of whether such
Damages may be as a result of a breach of more than one representation or warranty or covenant.
Moreover, notwithstanding anything in this Agreement to the contrary, if a matter for which the
Purchaser would otherwise be entitled to indemnification under this Agreement is reserved for or
otherwise included in the Final Net Working Capital, then the Purchaser shall not be able to
recover for such item to the extent (and only to the extent and in the such amount as) it was so
reserved or accrued.



     11.7 Effect of Knowledge. Notwithstanding any other term herein, Purchaser (and
Purchaser Indemnified Parties) will not have any right to indemnification regarding any breach of a
representation or warranty herein if Sellers prove that (1) Purchaser had actual knowledge of such
breach at the time such representation or warranty was made and Purchaser concealed it from Sellers
for the purpose of allowing such a breach to occur and (2) Sellers did not have actual knowledge or
there was not Knowledge of the Company of such breach at such time. Except as stated in this
Section 11.7 above, Purchaser’s consummation of the transactions contemplated herein will
not be a waiver of, or otherwise affect, any claim for indemnification, notwithstanding any such
actual knowledge of Purchaser. For purposes of this Section 11.7, (A) Sellers’ actual
knowledge or Knowledge of the Company will include any matter in any item in or referenced in any
Section of the Disclosure Schedule or provided or made available by or on behalf of Sellers to
Knowledge of the Company in connection with the transactions contemplated herein and (B)
Purchaser’s actual knowledge only will be the actual knowledge of Mark Ties and Jim Griffin.



     11.8 Adjustments to Purchase Price. Any payments made pursuant to this Article
XI shall be consistently treated as adjustments to the Purchase Price for all purposes by
Sellers and Purchaser.



     11.9 Escrow. To secure the indemnification obligations of the Sellers under this
Agreement, the Indemnification Escrow Amount is being deposited into an escrow account (the
“Indemnification Escrow Account”) pursuant to Section 2.3 and the terms of an
Indemnification Escrow Agreement, pursuant to which indemnification claims may be made for a period
of 12 months after Closing. The Indemnification Escrow Amount may be used for matters arising out
of, relating to or resulting from Section 2.4 and for any other indemnification obligation
of Sellers under this Agreement. Disbursements from the Indemnification Escrow Account will occur
pursuant to the terms of this Agreement and the Indemnification Escrow Agreement. The
Indemnification Escrow Account will not be the sole source of funds for such obligations.



     11.10 Offset Against Seller Notes. Purchaser shall have the right to offset the
amount of any Damages related to any claim for indemnification under this Agreement against



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any payment or payments otherwise due under the Seller Notes after final resolution of a claim
hereunder. If final resolution (whether by order, judgment, decree, settlement, arbitration award
or otherwise) of any claim for which an indemnification notice has been given in good faith and in
accordance with this Agreement has not been reached as of the due date of any payment under the
Seller Notes, then Purchaser shall pay into an escrow account with US Bank the amount proposed to
be offset under the Seller Notes until final resolution of the underlying claim. The amount of any
payment under the Seller Notes which is not then subject to a claim shall be paid to the Sellers
when due. The terms of the escrow agreement relating to any such escrowed payment shall be
substantially similar to that of the Indemnification Escrow Agreement. Upon final resolution of
such claim, Purchaser and Sellers will apply such funds to such Damages in accordance with this
Article XI and such final resolution. Any offset after final resolution of a claim against
the Seller Notes shall be deemed to have occurred upon the date that the Purchaser Indemnified
Party initially gave notice of the underlying claim for indemnification under this Agreement (the
“Claim Date”) and shall reduce the principal amount of the Seller Notes as of such date,
including for purposes of calculating interest under the Seller Notes. In no event will the
exercise of any right to withhold payment or right of offset in good faith by the Purchaser,
whether or not ultimately determined to be justified, constitute an event of default under the
Seller Notes or a breach of this Agreement. Neither the exercise of, nor the failure to exercise,
such right of offset by the Purchaser will constitute an election of remedies or limit Purchaser in
any manner in the enforcement of any other remedies that may be available to it. Nothing in this
Section 11.10 shall limit Purchaser’s right to proceed directly against any Seller for the
collection of any Damages even before exercising the rights of offset in this Section
11.10; provided however, that any Seller may at its option satisfy any indemnification
obligations finally determined to be due from it under this Agreement by delivery of Seller Notes
or Seller Convertible Notes, which shall be valued at their face amount together with accrued and
unpaid interest through the Claim Date.



ARTICLE XII

MISCELLANEOUS PROVISIONS




     12.1 Fees and Expenses. Except as otherwise provided herein, the Purchaser and the
Sellers shall pay all costs and expenses incurred on behalf of such party(ies) in connection with
the negotiation, preparation and execution of this Agreement and the consummation of the
transactions contemplated hereby, including, without limitation, the fees and expenses of attorneys
and accountants; provided, however, that the fees and expenses incurred by the
Company in connection with the negotiation, preparation and execution of this Agreement and the
consummation of the transactions contemplated hereby, including, without limitation, the fees and
expenses of the Company’s attorneys and accountants will be the responsibility of the Sellers,
except to the extent such expenses are related to Purchaser’s financing.



     12.2 Notices. All notices, requests, demands and other communications made under this
Agreement shall be in writing, correctly addressed to the recipient as follows:



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	If to Purchaser (or the Company
after the Closing):

	 	XATA CORPORATION

965 Prairie Center Drive

Eden Prairie, MN 55344

Attn: Mark Ties

Facsimile No.: (952) 641-5848

	 
	 	 
	with a copy to:

	 	
Faegre & Benson LLP

2200 Wells Fargo Center

90 South Seventh Street

Minneapolis, Minnesota 55402

Attn: Michael Coddington, Esq.

Facsimile No.: (612) 766-1600
	 
	 	 
	If to Sellers (or the Company
prior to the Closing or the
FCC SPE):

	 	c/o Platinum Equity Advisors, LLC

360 North Crescent Drive, South Building

Beverly Hills, California 90210

Attn: Eva M. Kalawski, Esq.

Facsimile No.: (310) 712-1863
	 
	 	 
	with a copy to:

	 	Bingham McCutchen LLP

600 Anton Boulevard, Suite 1800

Costa Mesa, California 92626

Attn: James W. Loss, Esq.

Facsimile No.: (714) 830-0726





Notices, requests, demands and other communications made under this Agreement shall be deemed to
have been duly given (i) upon delivery, if served personally on the party to whom notice is to be
given, (ii) on the date of receipt, refusal or non-delivery indicated on the receipt if mailed to
the party to whom notice is to be given by registered or certified, postage prepaid or by air
courier or (iii) upon confirmation of transmission, if sent by facsimile. Any party may give
written notice of a change of address in accordance with the provisions of this Section
12.2 and after such notice of change has been received, any subsequent notice shall be given to
such party in the manner described at such new address.




     12.3 Schedules. The inclusion of any information in any Schedule attached hereto will
not be deemed an admission or acknowledgment, in and of itself and solely by virtue of the
inclusion of such information in such Schedule, that such information is required to be listed in
such Schedule. The headings, if any, of the individual sections of the Schedules are inserted for
convenience only and will not be deemed to constitute a part thereof or a part of this Agreement.
The Schedules are arranged in sections corresponding to the sections of this Agreement merely for
convenience, and the disclosure of an item in one Schedule as an exception to a particular
covenant, representation or warranty will be deemed adequately disclosed as an exception with
respect to all other covenants, representations or warranties to the



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extent that the relevance of such item to such other covenants, representations or warranties
is reasonably apparent on the face of such item, notwithstanding the presence or absence of an
appropriate Schedule with respect to such other covenants, representations or warranties or an
appropriate cross-reference thereto.



     12.4 Entire Agreement. This Agreement, together with the Disclosure Schedule, the
Earth Station Management Agreement, the Escrow Agreements, and the Confidentiality and
Nondisclosure Agreement referred to in Section 6.4, sets forth the entire agreement between
the parties with regard to the subject matter hereof, and supersedes all other prior agreements and
understandings, written or oral, between the parties or any of their respective Affiliates with
respect to such subject matter.



     12.5 Governing Law. The validity, construction and performance of this Agreement, and
any action arising out of or relating to this Agreement shall be governed by the Laws of the State
of New York, without regard to the Laws of such State as to choice or conflict of Laws.



     12.6 Waiver and Amendment. This Agreement may be amended, supplemented, modified
and/or rescinded only through an express written instrument signed by all parties or their
respective successors and permitted assigns. Any party may specifically and expressly waive in
writing any portion of this Agreement or any breach hereof, but only to the extent such provision
is for the benefit of the waiving party, and no such waiver shall constitute a further or
continuing waiver of any preceding or succeeding breach of the same or any other provision. The
consent by one party to any act for which such consent was required shall not be deemed to imply
consent or waiver of the necessity of obtaining such consent for the same or similar acts in the
future, and no forbearance by a party to seek a remedy for noncompliance or breach by another party
shall be construed as a waiver of any right or remedy with respect to such noncompliance or breach.



     12.7 Assignment. Except as specifically provided otherwise in this Agreement, neither
this Agreement nor any interest herein shall be assignable (voluntarily, involuntarily, by judicial
process, operation of Law or otherwise), in whole or in part, by any party without the prior
written consent of the other party, and any such attempted assignment shall be null and void.
Notwithstanding the foregoing, nothing in this Section 12.7 shall prevent Purchaser,
without the consent of any other party, from assigning all or part of its rights or obligations
hereunder by way of collateral assignment to any lender(s) providing financing for the transactions
contemplated hereby or to any of its Affiliates, but no such assignment shall relieve Purchaser of
its obligations under this Agreement.



     12.8 Successors and Assigns. Each of the terms, provisions and obligations of this
Agreement shall be binding upon, shall inure to the benefit of, and shall be enforceable by the
parties and their respective legal representatives, successors and permitted assigns.



     12.9 No Third Party Beneficiaries. Except as otherwise specifically set forth herein,
nothing in this Agreement will be construed as giving any Person, other than the parties to this
Agreement and their successors and permitted assigns, any right, remedy or claim under, or in
respect of, this Agreement or any provision hereof.



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     12.10 No Personal Liability. This Agreement shall not create or be deemed to create
or permit any personal liability or obligation on the part of (i) any direct or indirect
stockholder, member or partner of any Seller or Purchaser or (ii) any officer, director, employee,
agent or representative of any Seller, Purchaser or the Company.



     12.11 Severability. It is the desire and intent of the parties that the provisions of
this Agreement be enforced to the fullest extent permissible under the Law and public policies
applied in each jurisdiction in which enforcement is sought. Accordingly, if any term or provision
of this Agreement, or the application thereof to any person or circumstance, is adjudicated by a
court of competent jurisdiction to be invalid, prohibited or unenforceable in any jurisdiction: (i)
a substitute and equitable provision shall be substituted therefor in order to carry out, so far as
may be valid and enforceable in such jurisdiction, the intent and purpose of the invalid,
prohibited or unenforceable provision; and (ii) the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected by such invalidity,
prohibition or unenforceability, nor shall such invalidity, prohibition or unenforceability of such
provision affect the validity or enforceability of such provision, or the application thereof, in
any other jurisdiction.



     12.12 No Presumption. This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the party drafting or causing
any instrument to be drafted.



     12.13 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute a single
agreement.



     12.14 Facsimile Signatures. This Agreement and any other document or agreement
executed in connection herewith may be executed by delivery of a facsimile copy of an executed
signature page with the same force and effect as the delivery of an originally executed signature
page. In the event any party delivers a facsimile copy of a signature page to this Agreement or
any other document or agreement executed in connection herewith, such party shall deliver an
originally executed signature page within three business days of delivering such facsimile
signature page or at any time thereafter upon request; provided, however, that the
failure to deliver any such originally executed signature page shall not affect the validity of the
signature page delivered by facsimile, which has and shall continue to have the same force and
effect as the originally executed signature page.



     12.15 Waiver of Jury Trial. EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE
TO A JURY TRIAL IN ANY PROCEEDING EXISTING UNDER OR RELATING TO THIS AGREEMENT OR ANY ANCILLARY
DOCUMENT.



[ The remainder of this page has been intentionally left blank. Signature page follows.]





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[Signature page to Stock Purchase Agreement]




          IN WITNESS WHEREOF, each of the parties has executed this Agreement as of the date first set
forth above.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PURCHASER:	 	 	 	THE COMPANY:	 	 
	 
	XATA CORPORATION	 	 	 	GEOLOGIC SOLUTIONS, INC.	 	 
	 
	By:	 	/s/ Mark E. Ties	 	 	 	By:	 	/s/ Eva M. Kalawski	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	Mark E. Ties 	 	 	 	 	 	Name:	 	Eva M. Kalawski 	 	 
	 

	 	Title:
	 	Chief Financial Officer
	 	 	 	 	 	Title:
	 	Vice President & Secretary	 	 
	 
	For purposes of Section 6.16
and Sections 11 and 12:	 	 	 	SELLERS:	 	 
	 
	FCC SPE:	 	 	 	PLATINUM EQUITY CAPITAL PARTNERS, L.P.	 	 
	 
	GEOLOGIC MANAGEMENT, INC.	 	 	 	PLATINUM EQUITY CAPITAL PARTNERS, A, L.P.	 	 
	 
	By:	 	/s/ Eva M. Kalawski	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Name:	 	Eva M. Kalawski	 	 	 	PLATINUM EQUITY CAPITAL PARTNERS, PF, L.P.	 	 
	 

	 	Title:
	 	Vice President & Secretary	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	By:	 	Platinum Equity Partners, LLC, their general partner	 	 
	 
	 	 	 	 	 	 	 	 	By:	 	Platinum Equity Investment Holdings, LLC,

its senior managing member	 	 
	 
	 	 	 	 	 	 	 	 	By:	 	/s/ Eva M. Kalawski	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	Name:	 	Eva M. Kalawski	 	 
	 

	 	 	 	 	 	 	 	 	 	Title:	 	Vice President & Secretary	 	 
	 
	 	 	 	 	 	 	 	 	PLATINUM TRANSPORTATION PRINCIPALS, LLC	 	 
	 
	 	 	 	 	 	 	 	 	By:	 	Platinum Equity Investment Holdings, LLC,

its senior managing member	 	 
	 
	 	 	 	 	 	 	 	 	By:	 	/s/ Eva M. Kalawski	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	Name:
	 	Eva M. Kalawski 	 	 
	 

	 	 	 	 	 	 	 	 	 	Title:
	 	Vice President & Secretary	 	 






 









 





Schedule A




SCHEDULE OF SELLERS




	 	 	 	 	 
	Name of Seller	 	Number of Shares Held
	 
	 	 	 	 
	Platinum Equity Capital Partners, L.P.
	 	 	588.421061	 
	Platinum Equity Capital Partners-A, L.P.
	 	 	161.654121	 
	Platinum Equity Capital Partners-PF, L.P.
	 	 	109.924818	 
	Platinum Transportation Principals, LLC
	 	 	140	 
	TOTAL
	 	 	1,000	 






 









 






Exhibit A




WORKING CAPITAL AND COMPANY ACCOUNTING POLICIES





	1.	 	Calculation of Net Working Capital






	 	(a)	 	“Net Accounts Receivable” means the total balance of accounts
receivable, excluding the aggregate receivables on sales-type leases, less allowance
for Doubtful Accounts.
	 
	 	(b)	 	“Doubtful Accounts” includes an estimate of the receivables that the
Company has reserved for in accordance with GAAP that the Company feels is
uncollectable consistent with the company accounting policies described below.
	 
	 	(c)	 	“Net Inventory” means the total inventory value less an inventory
Obsolescence Reserve.
	 
	 	(d)	 	“Obsolescence Reserve” includes all inventory that has been reserved
for in accordance with GAAP that the Company feels has been impaired consistent with
the company accounting policies described below.
	 
	 	(e)	 	“Working Capital Assets” is the sum total of cash, Net Accounts
Receivable, Net Inventory and all prepaid expenses excluding current and long-term
portions of deferred costs.
	 
	 	(f)	 	“Working Capital Liabilities” is the sum total of all accounts payable,
all accrued expenses and all accrued compensation and related employee expenses,
excluding accruals for Logo Corporation liabilities, any employee bonuses for 2007,
current and long-term portions of deferred revenue and any liabilities associated with
warranty related accruals in excess of $125,000 (no other accrued amounts related to
warranty of similar liabilities are to be included).
	 
	 	(g)	 	“Net Working Capital” is Working Capital Assets less Working Capital
Liabilities.






	2.	 	Company Accounting Policies
	 
	 	 	Revenue Recognition
	 
	 	 	Subscriber Revenues
	 
	 	 	The Company derives subscriber revenues (including the monthly subscriber fee) from the
provision of real-time access to business information integrated into existing wireless communication platforms. The Company obtains signed contracts from its subscribers at
the beginning of the initial subscriber period. The Company’s contracts with MobileMax




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	 	 	subscribers are generally for three to five year periods and include termination penalties
if cancelled by the subscriber before the initial service period expires. These contracts
are generally renewable at the option of the subscriber for additional periods or otherwise
continue on a monthly basis until cancelled by the subscriber. Contracts with subscribers to
the Company’s CrossBridge Solutions service offering are offered on a monthly basis with
cancellation at the option of either the Company or the subscriber. The Company recognizes
subscriber revenue on a monthly basis as the service is provided.
	 
	 	 	Device Revenues
	 
	 	 	The Company derives device revenues from the sale of wireless devices used to provide
its subscriber services. Revenue for device sales is initially recorded as deferred revenue
and recognized over the subscriber contract term for the initial service term which is
generally three to five years. The Company also derives device revenues from the rental of
MobileMax units that are leased to customers under operating leases, which is recognized on
a straight line basis over the term of the lease, and from the sale of spare parts, which
are recognized when the parts are shipped to the customer.
	 
	 	 	Cost of Revenues
	 
	 	 	Cost of revenues consists primarily of airtime costs incurred for the use of third
party satellite and terrestrial networks, and costs of devices that are resold or leased to
customers. The cost of devices sold is deferred and amortized over the life of the related
customer contract term of three to five years, consistent with device revenues. Shipping
costs for devices sold are invoiced to customers and included in revenues and cost of
revenues. Cost of revenues also includes amortization of the Investment in sales-type
depreciation of operating lease equipment.
	 
	 	 	Accounts Receivable
	 
	 	 	Accounts receivable consists of billings for monthly service, new system (device)
sales, sales of miscellaneous piece parts consumed by customers in the ordinary course of
business, and billings for devices shipped through the RMA process should the customer not
return the broken unit within 30 days.
	 
	 	 	Allowances are made for doubtful accounts based on a consistently applied methodology
assessed on the aging of accounts receivable, in total, adjusted for known fully-collectible
items, subsequent receipts, and any known uncollectible items (e.g., as a result of a known
customer insolvency). Prior to any known adjustments, reserve amounts are assessed at 25%
for amounts 31-60 days past due, 75% for amounts 61 to 90 days past due, and 100% for
amounts over 90 days past due.
	 
	 	 	Inventory
	 
	 	 	Inventory consists of finished goods, primarily mobile communications devices, stated
at the lower of cost or market along with associated component parts, cables




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	 	 	and WIP. Cost is determined using the first-in, first-out method. The Company’s inventory is subject to
rapid technological changes that can have an adverse impact on its realization in future
periods, as such assessments are made periodically with respect to the potential
obsolescence of current inventory items and reserves are made as appropriate.
	 
	 	 	Investment in Sales-Type Leases
	 
	 	 	The Company leases devices to certain of its customers that are accounted for as
sales-type leases. The Company records its investment in the sales-type leases at the
present value of the future minimum lease payments. There is no guaranteed residual value
associated with the leased devices. The leases generally have terms of five years and are
collateralized by a security interest in the related equipment. The Company records revenue
on these leased devices as the ongoing service is provided over the term of the related
lease agreement.
	 
	 	 	Property and Equipment
	 
	 	 	Property and equipment is recorded at cost, less accumulated depreciation. Routine
maintenance and repairs are charged to operations as incurred. Depreciation is calculated
using the straight-line method over the estimated useful lives of the assets, which are as
follows:





	 	 	 
	Furniture, fixtures and equipment
	 	3 - 5 years
	Operating lease equipment
	 	3 years
	Land-earth station equipment
	 	4 years
	Computer equipment and purchased software
	 	3 years







Warranty Costs




The Company provides a standard warranty of one year with its product. Since device hardware
revenue and costs are deferred and recognized over the term of the subscriber agreement under
SAB 101, no accrual for warranty expense is necessary.




Additionally, for extended warranties beyond the one year, the Company generally bundles the
extended warranty with the monthly subscriber fee (as opposed to with the up front device
charge) and increases the monthly fee by an amount generally ranging from $2-5 per month. In
accordance with FASB EITF 90-1, the company does not record a liability for the provision of
extended warranty at the time of product shipment but, rather, expenses extended warranty
costs as incurred.




For product refurbished and placed into inventory, the Company currently records the value
of repaired/refurbished inventory on the balance sheet at the time of repair and expenses
these items as they are released to customers to match the cost of repairs with the actual warranty activity and to provide a cost of sale corresponding to the sale of
refurbished units. Prior to June 2007, the Company’s cost for repairs of product was
expensed as incurred at the time of repair.



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Income Taxes




Income taxes are determined using the liability method, which requires the recognition
of deferred tax liabilities and assets based on differences between the financial reporting
and tax bases of assets and liabilities and are measured using the enacted tax rates and
laws that will be in effect when the differences are expected to reverse. All such deferred
tax assets are currently fully-reserved.




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