exv10w9






EXHIBIT 10.9




XATA CORPORATION




VOTING AGREEMENT




     This Voting Agreement (the “Agreement”) is made as of the 4th day of
December, 2009, by and among Xata Corporation, a Minnesota corporation (the “Company”) and
TCV VII, L.P., a Cayman Islands exempted limited partnership, TCV VII (A), L.P.,
a Cayman Islands exempted limited partnership, and TCV Member Fund, L.P., a Cayman Islands
exempted limited partnership (collectively, “TCV”), and those certain holders of the Company’s
Common Stock listed on Exhibit A hereto (the “Major Stockholders” and together with TCV, each a
“Stockholder” and collectively, the “Stockholders”). Terms used but not defined herein have the
meanings given to them in the Note Purchase Agreement (as defined below).



WITNESSETH




     Whereas, the Major Stockholders are the beneficial owners of shares (the “Major
Stockholders Stock”) of the common stock, par value $0.01, of the Company (the “Common Stock”);



     Whereas, concurrently herewith, TCV shall receive Notes that, following the
occurrence of a Conversion Event, will be convertible into shares of a newly created series of
preferred stock of the Company (the “Series G Preferred Stock”) and warrants (the “G Warrants”) to
purchase shares of Common Stock, pursuant to that certain Note Purchase Agreement, dated of even
date herewith, by and among TCV, certain funds affiliated with Trident Capital, Inc., GW 2001 Fund,
L.P., and the Company (the “Note Purchase Agreement”); and



     Whereas, the obligations in the Note Purchase Agreement are conditioned upon the
execution and delivery of a voting agreement in the form of this Agreement.



     Now, Therefore, in consideration of these premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:



AGREEMENT




1. Voting.




     1.1 Covered Shares. The Major Stockholders each agree to hold all Covered Shares subject to,
and to vote the Covered Shares in accordance with, the provisions of this Agreement. For purposes
of this Agreement, “Covered Shares” shall mean all shares of voting capital stock of the
Company (including but not limited to the Major Stockholders Stock) registered in the Major
Stockholders’ respective names or beneficially owned by them as of the date hereof and any and all
other equity securities of the Company legally or beneficially acquired by each of the Major
Stockholders after the date hereof; provided, however, in the event it is
determined that TCV or an affiliate of TCV has beneficial ownership of the Covered Shares by virtue
of this Agreement or otherwise and, if added to all other shares of capital stock of the Company,
if any,



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as to which TCV or an affiliate of TCV has beneficial ownership (the “Other TCV
Shares”), TCV would be determined to exercise or direct the exercise of a new range of voting
power within any of the ranges specified in Section 302A.671, subdivision 2, paragraph (d) of the
Minnesota Business Corporation Act (a “New Voting Power Range”), then the number of Covered
Shares subject to this Agreement shall automatically be reduced, without further action by, or on
behalf of, TCV, the Company or the Stockholders, on a pro rata basis with any Other TCV Shares that
are subject to any other agreement or arrangement deemed to give TCV beneficial ownership thereof
(an “Other Agreement”) (x) first, as to the shares of voting capital stock of the Company
issuable upon exercise of warrants (“Company Warrants”) held by the Major Stockholders and
any stockholders party to Other Agreements (with the effect that such Company Warrants and any
shares of voting capital stock of the Company issuable or issued upon exercise of such Company
Warrants shall not be subject to the provisions of this Agreement or the Other Agreements, as
applicable), until the remaining Covered Shares subject to this Agreement taken together with any
Other TCV Shares, shall be less than the New Voting Power Range (the “Company Warrant
Reduction”), and, if such Company Warrant Reduction is not sufficient to reduce the Covered
Shares, when taken together with the Other TCV Shares, to less than the New Voting Power Range,
then (y) second, as to the outstanding shares of voting capital stock of the Company held by the
Major Stockholder and any stockholders party to an Other Agreement, until the remaining Covered
Shares subject to this Agreement, taken together with the Other TCV Shares, shall be less than the
New Voting Power Range.




     1.2 Election of Directors.



          (a) Following the occurrence of a Conversion Event, on all matters relating to the election
and removal of directors of the Company, if (i) the holders of Series G Preferred Stock of the
Company no longer have the right to elect one (1) director pursuant to the Company’s Certificate of
Designation of Preferences of Series G Preferred Stock, as amended from time to time, but (ii) TCV
continues to hold the Required Number of Common Equivalents (as defined below), the Major
Stockholders agree to vote all Covered Shares held by them (or the holders thereof shall consent
pursuant to an action by written consent of the holders of capital stock of the Company if
permitted by applicable law and the Articles of Incorporation of the Company) so as to elect
members of the Company’s Board of Directors (the “Board”) as follows:



               (i) For so long as TCV continues to hold the Required Number of Common Equivalents (as defined
below), at each election of or action by written consent to elect directors, the Major Stockholders
shall vote all of their respective Covered Shares so as to elect the TCV Designee described in
Section 1.2(b) below. Any vote taken to remove any director elected pursuant to this Section
1.2(a), or to fill any vacancy created by the resignation, removal or death of a director elected
pursuant to this Section 1.2(a), shall also be subject to the provisions of this Section 1.2(a).
Upon the request of TCV, each Major Stockholder agrees to vote its Covered Shares for the removal
of the TCV Designee.



          (b) For the purposes of this Agreement, the following definitions shall apply:



                    (1) “TCV Designee” shall mean one (1) individual nominated by TCV to serve on the Board.



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                    (2) “Required Number of Common Equivalents” shall mean at least 800,000 shares of Common Stock
(which shall include (i) any shares of Common Stock issued to TCV or its affiliates, (ii) any
shares of Common Stock issuable upon conversion of any Series G Preferred Stock held by TCV or its
affiliates or (iii) any shares of Common Stock issuable upon the exercise of warrants to purchase
Common Stock held by TCV or its affiliates).



     1.3 Protective Voting Covenant. For so long as any shares of Series G Preferred Stock remain
outstanding, the Company shall not take any action to increase the authorized number of shares of
Series G Preferred Stock without the written consent of holders of not less than sixty percent
(60%) of the outstanding shares of Series G Preferred Stock.


2. Committees. Following the occurrence of a Conversion Event, upon the request of TCV,
for so long as the TCV Designee is represented on the Board, the Company shall use its best efforts
to cause its Board to appoint the TCV Designee to serve as a member of each committee of the Board,
subject to any restrictions on committee membership that may be imposed by the Sarbanes-Oxley Act
of 2002, Nasdaq (or other securities exchange on which the Company’s securities are traded) and the
Securities and Exchange Committee, or any similar restriction applicable to the Company.



3. Indemnification Agreements.  Following the occurrence of a Conversion Event the
Company shall enter into and/or cause to be maintained in full force in effect an indemnification
agreement with each TCV Designee, which shall be in such customary form as may be mutually agreed
between the Company and TCV.



4. Fees and Expenses.  The Company agrees that, for so long as the TCV Designee is
represented on the Board, the Company shall reimburse such TCV Designee for his or her reasonable
out-of-pocket expenses incurred in attending meetings of the Board or otherwise acting on behalf of
the Company at the request and direction of the Board.



5. Termination.




     5.1 This Agreement shall continue in full force and effect from the date hereof through the
earliest of the following dates, on which date it shall terminate in its entirety:



          (a) December 1, 2019;



          (b) the date following the occurrence of a Conversion Event on which TCV ceases to hold the
Required Number of Common Equivalents; or



          (c) the date as of which the parties hereto terminate this Agreement by written consent of (i)
the Company, and (ii) holders of a majority of the shares of capital stock of the Company then held
by TCV (on an as-converted into Common Stock basis).


6. Transfers of Major Stockholder Stock. 




     6.1 Permitted Transfers. Notwithstanding anything to the contrary contained herein, shares of
Major Stockholder Stock that (i) are sold by a Major Stockholder in transactions effected on a
national securities exchange or through the Nasdaq Stock Market (excluding block



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trades of 10,000 shares or more to a single purchaser) or (ii) are transferred as bona fide
gifts or donations to charitable organizations, (each, a “Permitted Transfer”) in either case,
shall be transferred free and clear of any restrictions on voting as described herein. In the case
of block trades of 10,000 shares or more to a single purchaser, and all other sales or transfers of
Major Stockholder Stock that are not Permitted Transfers (each a “Restricted Transfer”), such
transfers shall be permitted to be made free and clear of any restrictions on voting as described
herein, provided that such Major Stockholder shall first grant to TCV the rights of first refusal
set forth in Section 6.2.



     6.2 Right of First Refusal.



          (a) If a Major Stockholder proposes to sell any Major Stockholder Stock in a Restricted
Transfer (the “Restricted Transfer Shares”), TCV shall have a right of first refusal to purchase
all (but not less than all) of its Pro Rata Portion (as defined below) of such Restricted Transfer
Shares. The Major Stockholder shall give TCV written notice (the “Transfer Notice”) of its
intention, describing the Restricted Transfer, the price at which such Major Stockholder is
proposing to sell the Restricted Transfer Shares (the “Offer Price”), and the terms and conditions
upon which such Major Stockholder proposes to issue the same. TCV shall have seven (7) days from
the date of receipt of such Transfer Notice to agree to purchase all (but not less than all) of its
Pro Rata Portion of the Restricted Transfer Shares proposed to be sold, at the Offer Price and upon
the other terms and conditions specified in the Transfer Notice by giving written notice to such
Major Stockholder. TCV shall be entitled to assign all or any portion of its rights to purchase
any Restricted Transfer Shares hereunder to any affiliate of TCV. For purposes of this Section
6.2, “Pro Rata Portion” shall mean, with respect to TCV or any other person having a right of first
refusal to purchase Restricted Transfer Shares (each, an “Offeree”), that portion of the number of
Restricted Transfer Shares that a Major Stockholder proposes to sell equal to (i) the aggregate
number of shares of Common Stock owned by TCV or such Offeree (calculated on a fully-diluted,
as-converted and as-exercised basis) divided by (ii) the aggregate number of shares of Common Stock
owned by TCV and all Offerees (calculated on a fully-diluted, as-converted and as-exercised basis).



          (b) If TCV elects not to exercise its right of first refusal as to such Restricted Transfer
Shares, then the Major Stockholder shall give each Offeree notice of TCV’s election, and each such
Offeree shall have three (3) days from the date of receipt of such notice to agree to purchase all
(but not less than all) of its Pro Rata Portion of such Restricted Transfer Shares (calculated
excluding any shares of Common Stock owned by TCV), at the Offer Price and upon the other terms and
conditions specified in the initial Transfer Notice delivered to TCV, by giving written notice to
such Major Stockholder. In the event that any or all of the Offerees elects not to exercise its
right of first refusal as to its Pro Rata Portion of such Restricted Transfer Shares, then the
Major Stockholders may sell such Restricted Transfer Shares to any person or persons at the Sale
Price and upon the terms and conditions specified in the Transfer Notice.


7. Miscellaneous.




     7.1 Specific Performance. The parties hereto hereby declare that it is impossible to measure
in money the damages which will accrue to a party hereto or to their heirs, personal
representatives, or assigns by reason of a failure to perform any of the obligations under this



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Agreement and agree that the terms of this Agreement shall be specifically enforceable. If
any party hereto or his heirs, personal representatives, or assigns institutes any action or
proceeding to specifically enforce the provisions hereof, any person against whom such action or
proceeding is brought hereby waives the claim or defense therein that such party or such personal
representative has an adequate remedy at law, and such person shall not offer in any such action or
proceeding the claim or defense that such remedy at law exists.



     7.2 Governing Law. This Agreement shall be governed by and construed under the laws of the
State of Minnesota as such laws are applied to agreements among Minnesota residents entered into
and performed entirely within the State of Minnesota, without reference to the conflict of laws
provisions thereof. The parties agree that any action brought by either party under or in
relation to this Agreement, including without limitation to interpret or enforce any provision of
this Agreement, shall be brought in, and each party agrees to and does hereby submit to the
jurisdiction and venue of, any state or federal court located in the Hennepin County, Minnesota.



     7.3 Amendment or Waiver. This Agreement may be amended or modified (or provisions of this
Agreement waived) only upon the written consent of (i) the Company, (ii) TCV, and (iii) holders of
a majority in interest of the Major Stockholders Stock. Any amendment or waiver so effected shall
be binding upon the Company, each of the parties hereto and any assignee of any such party.



     7.4 Severability. In the event one or more of the provisions of this Agreement should, for
any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein.



     7.5 Successors and Assigns. The provisions hereof shall inure to the benefit of, and be
binding upon, the parties hereto and their respective successors, assigns, heirs, executors and
administrators and other legal representatives.



     7.6 Additional Shares. In the event that subsequent to the date of this Agreement any shares
or other securities are issued on, or in exchange for, any of the Covered Shares by reason of any
stock dividend, stock split, combination of shares, reclassification or the like, such shares or
securities shall be deemed to be Covered Shares, as the case may be, for purposes of this
Agreement.



     7.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which
will be deemed an original, but all of which together shall constitute one instrument.



     7.8 Waiver. No waivers of any breach of this Agreement extended by any party hereto to any
other party shall be construed as a waiver of any rights or remedies of any other party hereto or
with respect to any subsequent breach.



     7.9 Delays or Omissions. It is agreed that no delay or omission to exercise any right, power
or remedy accruing to any party, upon any breach, default or noncompliance by another



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party under this Agreement shall impair any such right, power or remedy, nor shall it be
construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein,
or of or in any similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character on any party’s part of
any breach, default or noncompliance under this Agreement or any waiver on such party’s part of any
provisions or conditions of the Agreement must be in writing and shall be effective only to the
extent specifically set forth in such writing. All remedies, either under this Agreement by law,
or otherwise afforded to any party, shall be cumulative and not alternative.



     7.10 Attorney’s Fees. In the event that any suit or action is instituted under or in relation
to this Agreement, including without limitation to enforce any provision in this Agreement, the
prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs
and expenses of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of attorneys and
accountants, which shall include, without limitation, all fees, costs and expenses of appeals.



     7.11 Notices. All notices required in connection with this Agreement shall be in writing and
shall be deemed effectively given upon the earlier of actual receipt of: (a) personal delivery to
the party to be notified, (b) one business day after the date of confirmed transmission by
facsimile, (c) five (5) days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) business day after the business day of deposit with a
nationally recognized overnight courier, specifying next day delivery, freight prepaid, with
written notification of receipt. All communications shall be sent to the address of the holder as
specified on the signature page hereto or at such address as such party may designate by ten (10)
days advance written notice to the other parties hereto.



     7.12 Entire Agreement. This Agreement and the Exhibits hereto, along with the Note Purchase
Agreement, the Notes and the other documents delivered pursuant thereto constitute the full and
entire understanding and agreement between the parties with regard to the subjects hereof and
thereof and no party shall be liable or bound to any other in any manner by any oral or written
representations, warranties, covenants and agreements except as specifically set forth herein and
therein. Each party expressly represents and warrants that it is not relying on any oral or written
representations, warranties, covenants or agreements outside of this Agreement.



[THIS SPACE INTENTIONALLY LEFT BLANK]





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     In Witness Whereof, the parties hereto have caused this Agreement to be executed by
their duly authorized representatives as of the day and year first above written.



COMPANY:




XATA CORPORATION




	 	 	 	 	 
	By:

	 	/s/ Wesley C. Fredenburg
 

Wesley C. Fredenburg
	 	  
	 

	 	General Counsel and Secretary	 	 






Voting Agreement

Signature Page




 









 








John Deere Special Technologies Group, Inc.




	 	 	 	 	 	 	 
	By:	 	/s/ Bharat Vedak	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Bharat Vedak	 	 
	 

	 	Title:
	 	SVP, Deere & Co.	 	 






Voting Agreement

Signature Page




 









 








TCV ENTITIES




TCV VII, L.P.

a Cayman Islands exempted limited partnership,

acting by its general partner




Technology Crossover Management VII, L.P.

a Cayman Islands exempted limited partnership,

acting by its general partner




Technology Crossover Management VII, Ltd.

a Cayman Islands exempted company




	 	 	 	 	 	 	 
	By:	 	/s/ Frederic D. Fenton	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Frederic D. Fenton	 	 
	 

	 	Title:
	 	Attorney in Fact	 	 






TCV VII (A), L.P.

a Cayman Islands exempted limited partnership,

acting by its general partner




Technology Crossover Management VII, L.P.

a Cayman Islands exempted limited partnership,

acting by its general partner




Technology Crossover Management VII, Ltd.

a Cayman Islands exempted company




	 	 	 	 	 	 	 
	By:	 	/s/ Frederic D. Fenton	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Frederic D. Fenton	 	 
	 

	 	Title:
	 	Attorney in Fact	 	 






TCV Member Fund, L.P.

a Cayman Islands exempted limited partnership,

acting by its general partner




Technology Crossover Management VII, Ltd.

a Cayman Islands exempted company




	 	 	 	 	 	 	 
	By:	 	/s/ Frederic D. Fenton	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Frederic D. Fenton	 	 
	 

	 	Title:
	 	Attorney in Fact	 	 






Voting Agreement

Signature Page





 









 








Exhibit A




Major Stockholders




     John Deere Special Technologies Group, Inc.



Exhibit A

Voting Agreement