-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VRFMlOu+Y7zitqgI1HGBPzsb9Ef1v5mPUxgunKkhBr1UxFQk/p0zrTGdT37yb33t wxqIpJ9VMUpXIkbvd4HU/Q== 0000950134-04-003275.txt : 20040311 0000950134-04-003275.hdr.sgml : 20040311 20040311125649 ACCESSION NUMBER: 0000950134-04-003275 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040311 FILER: COMPANY DATA: COMPANY CONFORMED NAME: XATA CORP /MN/ CENTRAL INDEX KEY: 0000854398 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPUTERS [3571] IRS NUMBER: 411641815 STATE OF INCORPORATION: MN FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-111797 FILM NUMBER: 04662335 BUSINESS ADDRESS: STREET 1: 151 E CLIFF RD STE 10 CITY: BURNSVILLE STATE: MN ZIP: 55337 BUSINESS PHONE: 6128943680 MAIL ADDRESS: STREET 1: 151 E CLIFF RD STE 10 CITY: BURNSVILLE STATE: MN ZIP: 55337 FORMER COMPANY: FORMER CONFORMED NAME: NORTHWEST ACQUISITIONS INC/MN/ DATE OF NAME CHANGE: 19911209 S-3/A 1 c81874a1sv3za.txt PRE-EFFECTIVE AMENDMENT TO FORM S-3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 11, 2004 REGISTRATION NO. 333-111797 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------- PRE-EFFECTIVE AMENDMENT #1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- XATA CORPORATION (Exact Name of registrant as specified in its charter) MINNESOTA 7373 41-1641815 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification incorporation) Classification Code Number) Number)
---------- 151 EAST CLIFF ROAD, SUITE 10, BURNSVILLE, MINNESOTA 55337 (612) 894-3680 (Address, including zip code and telephone number, including area code of registrant's principal executive offices) ---------- JOHN G. LEWIS, CHIEF FINANCIAL OFFICER XATA CORPORATION 151 EAST CLIFF ROAD, SUITE 10 BURNSVILLE, MINNESOTA 55337 TELEPHONE: (952) 894-3680 TELEFAX: (952) 894-2463 (Name, address, including zip code, and telephone number, including area code, of agent for service) ---------- Copies to: JANNA R. SEVERANCE, ESQ. MOSS & BARNETT, A PROFESSIONAL ASSOCIATION 4800 WELLS FARGO CENTER, 90 SOUTH SEVENTH STREET MINNEAPOLIS, MINNESOTA 55402-4129 TELEPHONE: (612) 347-0367 ---------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time, commencing as soon as practicable after the effective date of this Registration Statement. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box:[ ] If any of the securities being registered on this Form are being offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: [x] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.[ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.[ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box.[ ] ---------- THE REGISTRANT HEREBY AMENDS THE REGISTRATION STATEMENT ON SUCH DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. ================================================================================ The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting any offer to buy these securities in any state where the offer or sale is not permitted. XATA CORPORATION 2,864,851 SHARES OF COMMON STOCK (PAR VALUE, $.01 PER SHARE) ---------- This prospectus relates to up to 2,864,851 shares of the common stock of XATA Corporation ("XATA," the "Company," "we," "our," or "ours") which may be issued upon exercise of convertible preferred stock and related warrants. Such common stock may be sold from time to time by the selling security holders identified in this prospectus. Our common stock is listed on the Nasdaq SmallCap Market under the symbol "XATA." On March 10, 2004, the last sales price of our common stock as reported on the Nasdaq market was $5.79 per share. INVESTING IN OUR COMMON STOCK INVOLVES CERTAIN RISKS. SEE "INFORMATION REGARDING FORWARD-LOOKING STATEMENTS" BEGINNING ON PAGE 2 FOR A DISCUSSION OF THESE RISKS. ---------- NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ---------- THE DATE OF THIS PROSPECTUS IS MARCH 15, 2004. ii TABLE OF CONTENTS
Page XATA CORPORATION..................................................................................................1 INFORMATION REGARDING FORWARD-LOOKING STATEMENTS..................................................................2 USE OF PROCEEDS...................................................................................................2 SELLING STOCKHOLDERS..............................................................................................3 PLAN OF DISTRIBUTION..............................................................................................5 LEGAL MATTERS.....................................................................................................6 EXPERTS...........................................................................................................6 MATERIAL CHANGES..................................................................................................7 DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION..............................................................7 WHERE YOU CAN FIND MORE INFORMATION...............................................................................8 SIGNATURES.......................................................................................................12
iii XATA CORPORATION XATA Corporation ("XATA" or the "Company") is the leader in onboard fleet management solutions for the private fleet trucking market. XATA's products seamlessly combine global positioning, wireless communication and fleet management software to help companies create enterprise-wide fleet management systems. XATA's systems provide mobile two-way messaging and real-time vehicle location. Additionally, XATA's products automate Department of Transportation ("DOT") driver log requirements and state fuel tax reporting, as well as collect data for vehicle diagnostics, driver performance and mileage. The Company's proven solutions enable its customers to reduce fuel costs, increase operational efficiencies, improve safety and enhance customer service. We are incorporated under the laws of the State of Minnesota and our principal executive offices are located at 151 East Cliff Road, Suite 10, Burnsville, MN 55337. Our telephone number is (952) 894-3680, our fax number is (952) 894-2463, and our website is www.xata.com. 1 INFORMATION REGARDING FORWARD-LOOKING STATEMENTS This prospectus may include or incorporate by reference "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, including statements regarding our expectations, hopes, beliefs, intentions or strategies regarding the future and may be identified by the use of words (or the negative thereof) such as "believe," "intend," "anticipate," "expects," and other words of similar import. These words indicate "forward-looking statements" and are thus prospective. These statements reflect our current expectations regarding (i) our future profitability and liquidity, (ii) the benefits to be derived from business strategy and (iii) other future developments in our business or the industry in which we operate. Forward-looking statements may also be found in the information incorporated by reference under the heading "Where You Can Find More Information," and may include statements relating to: o our business development activities; o sales and marketing efforts; o the status of material contractual arrangements including the negotiation or re-negotiation of such arrangements; o future capital expenditures; o the effects of regulation and competition on our business and future operating performance; and o the costs, timing, results, benefits and risks associated with our research, development, and commercialization of new products. Investors are cautioned that any such forward-looking statements are not guarantees of future performance and involve risks and uncertainties, and that actual results may differ materially from those possible results discussed in the forward-looking statements as a result of various factors. Consequently, you should regard forward-looking statements only as our current plans, estimates and beliefs. All forward-looking statements and reasons why results may differ included in this prospectus are made as of the date hereof, and we do not promise to notify you if we learn that our assumptions or projections are wrong for any reason. Before you decide to invest in shares of common stock you should be aware that various risks, which are described under the heading "Risk Factors" in Part I, Item 1 of our Annual Report on Form 10-KSB for the fiscal year ended September 30, 2003, filed with the SEC on December 29, 2003, as amended, modified or supplemented in any future filing with the SEC, could cause our actual results to differ from what we have stated in any forward-looking statements. USE OF PROCEEDS We will not receive any of the proceeds from the sale by the selling security holders of the shares of common stock, although we may receive up to approximately $1.9 million upon the exercise of the warrants to purchase common stock. 2 SELLING STOCKHOLDERS The shares of common stock being offered by the selling security holders represent shares that are issuable upon conversion of preferred stock and exercise of warrants, as described below. We are registering the shares so that the selling security holders may offer the shares for resale from time to time. Background on the Acquisition of Securities by the Selling Stockholders On December 6, 2003, we entered into a Common Stock Warrant and Series B Preferred Stock Purchase Agreement (the "Stock Purchase Agreement") with the following entities affiliated with Trident Capital, Inc. (collectively, "Trident"): o Trident Capital Fund-V, L.P. o Trident Capital Fund-V Affiliates Fund, L.P. o Trident Capital Fund-V Affiliates Fund (Q), L.P. o Trident Capital Fund-V Principals Fund, L.P. o Trident Capital Fund-V, C.V. Under the Stock Purchase Agreement, Trident purchased 1,612,903 shares of our Series B Preferred Stock for $4,096,774, or $2.54 per share. Each share of the Preferred Stock is convertible into one share of common stock. The price per share of Preferred Stock and the conversion price for the common stock is equal to the "market value" of the common stock (as defined in the rules of the Nasdaq Stock Market) on the date of execution of the definitive agreements. The Preferred Stock pays an annual cumulative dividend of 4% of the original issue price (payable in additional shares of Preferred Stock rather than cash, at the option of the holders, subject to limitations imposed by the rules of the Nasdaq Stock Market) and has a non-participating preferred liquidation right equal to the original issue price, plus accrued unpaid dividends. The Preferred Stock is redeemable by us after five (5) years at the original issue price, plus accrued unpaid dividends, if the market value of the common stock is at least three (3) times the then effective conversion price for a specified period. Upon occurrence of certain events, including default on debt, significant adverse judgments in litigation, bankruptcy, or a Change in Control (as defined in the Certificate of Designation for the Preferred Stock), we are required to redeem the preferred stock or, in the alternative, at our option, to increase the dividend rate to 10% per annum. So long as the holders hold at least 325,000 shares of Preferred Stock, they are entitled to vote as a class to elect two (2) members of the Company's Board of Directors. They elected one director at our annual meeting of shareholders on February 17, 2004; they could add a second director at any time. Additionally, we issued Trident 5-year warrants to purchase 451,226 shares of its Common Stock at an exercise price of $3.17 per share. The aggregate purchase price of the warrants was $56,403. The warrants permit "cashless exercise." We are using the cash proceeds from the sale of the Preferred Stock and warrants for new product marketing, product development, working capital and general corporate purposes. Ancillary agreements include indemnification agreements for the Trident representatives on the Board and Trident, and a voting agreement between Trident and each of John Deere Special 3 Technologies Group, Inc. and William P. Flies (each a major shareholder), which includes a right of first refusal in favor of Trident on their shares. Cherry Tree Securities, LLC ("CTS") acted as placement agent in consideration of a $320,000 cash fee and 7-year warrants for purchase of an aggregate of 163,264 shares of common stock (130,612 shares at $2.54 per share and 32, 652 shares at $3.17 per share). These warrants permit "cashless exercise." Certain documents described above are filed as exhibits to our Report on Form 8-K filed with the Securities and Exchange Commission (the "SEC") on December 9, 2003. In addition, an Amendment to the Certificate of Designation of Series B Preferred Stock is filed as an exhibit to our report on Form 10-QSB filed with the SEC on February 13, 2004. Securities Offered to the Public by the Selling Stockholders The table below lists the selling security holders and other information regarding the beneficial ownership of the common stock by each of the selling security holders. The second column lists, for each selling security holder, the number of shares of common stock held by such security holder or issuable (pursuant to options or warrants) to such security holder within 60 days of March 9, 2004. The third column lists the shares offered by each selling security holder. The selling security holders may sell all, some, or none of their shares in this offering. The fourth column shows the ownership of each selling stockholder, assuming sale of all shares offered by such stockholder. See "Plan of Distribution."
Name and Address(1) of Selling Shares Beneficially Owned Shares to be Offered by Shares Beneficially Stockholder Prior to the Offering the Selling Stockholder Owned After the Offering - ------------------------------ ------------------------- ----------------------- ------------------------ Number Percentage Number Percentage ------ ---------- ------ ---------- Trident Capital Fund-V, L.P. 1,849,606 (2) 21.1 All None -0- Trident Capital Fund-V Affiliates 10,724 (2) * All None -0- Fund, L.P. Trident Capital Fund-V Affiliates 10,231 (2) * All None -0- Fund (Q), L.P. Trident Capital Fund-V Principals 53,400 (2) * All None -0- Fund, L.P. Trident Capital Parallel Fund-V, 140,168 (2) 2.0 All None -0- C.V. Cherry Tree Securities LLC (4)(5) 81,632 (3) 1.2 All None -0- Charles J. and Leslie A. Gorman 81,633 (3) 1.2 All None -0- 1996 Charitable Trust U/A Dtd June 2, 1996 (5)
- ---------- * Less than 1%. (1) The address of all Trident entities is c/o Trident Capital, Inc., 505 Hamilton Avenue, Suite 200, Palo Alto, CA 94301. The address of the Charles J. and Leslie A. Gorman 1996 Charitable Trust and Cherry Tree Securities, LLC ("CTS") is 301 Carlson Parkway, Suite 103, Minnetonka, MN 55305. (2) Consists of shares of common stock issuable upon conversion of preferred stock and upon exercise of warrants. Christopher P. Marshall, a managing director of Trident Capital, Inc., has voting and dispositive power over all shares. 4 (3) Consists of shares issuable upon exercise of placement agent warrants. (4) Gordon Stofer, managing director of CTS, has voting and dispositive power over all shares held by CTS. (5) CTS is a securities broker-dealer registered with the SEC and various state commissions and is a member of the National Association of Securities Dealers, Inc. Charles Gorman, a settlor and income beneficiary of the Charles J. and Leslie A. Gorman 1996 Charitable Trust, is an employee and registered person of CTS. (6) Ron Hume is the sole trustee of the Charles J. and Leslie A. Gorman 1996 Charitable Trust and has voting and dispositive power over all shares held by the Trust. PLAN OF DISTRIBUTION We are registering shares of common stock issuable upon conversion of preferred stock and exercise of warrants to permit the resale of the shares from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling security holders of the shares of common stock, although we may receive up to approximately $1.9 million upon exercise of the warrants. We will bear all fees and expenses incident to the registration of the shares of common stock. The selling security holders have advised us that there are presently no underwriting arrangements with respect to the sale of the shares; however, such arrangements may exist in the future. The selling security holders, or their pledges, donees, transfers or other successors in interest, may choose to sell all or a portion of their common stock from time to time directly or through one or more underwriters, broker-dealers or agents. If the common stock is sold through underwriters or broker-dealers, the selling security holder will be responsible for underwriting discounts or commissions or agent's commissions. The common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions, (1) on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale, (2) in the over-the-counter market, (3) in transactions otherwise than on these exchanges or systems or in the over-the-counter market, (4) through the writing of options, whether such options are listed on an options exchange or otherwise, or (5) by any other legally available means. If the selling security holders effect such transactions by selling shares of common stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling security holders or commissions from purchasers of the shares of common stock for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). The selling security holders have advised us that they have no present intention to engage in any hedging activity in connection with their ownership or distribution of the XATA stock. However, if deemed necessary or desirable by them, they may purchase puts or put equivalent hedges on XATA 5 common stock. Any such activity would be undertaken only in compliance with the limitations of Regulation M (discussed below). The selling security holders and any broker-dealer participating in the distribution of the shares of common stock may be deemed to be "underwriters" within the meaning of the Securities Act, and any commissions paid, or any discounts or concessions allowed to any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares of common stock is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares of common stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling security holder and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers. Under the securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with. There can be no assurance that any selling security holder will sell any or all of the shares of common stock registered pursuant to the shelf registration statement, of which this prospectus forms a part. The selling security holders and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of common stock by the selling security holders and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the shares of common stock to engage in market-making activities with respect to the shares of common stock. All of the foregoing may affect the marketability of the shares of common stock and the ability of any person or entity to engage in market-making activities with respect to the shares of common stock. We will pay all expenses of the registration of the shares of common stock estimated to be approximately $5,000 in total, including, without limitation, SEC filing fees, expenses of compliance with state securities or "blue sky" laws and transfer agent fees relating to sales pursuant to this prospectus; provided, however, that the selling security holders will pay all underwriting discounts and selling commissions, if any. Once sold under the shelf registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in the hands of persons other than our affiliates. LEGAL MATTERS Legal matters related to the issuance of the shares of common stock being offered by this prospectus will be passed upon for us by the law firm of Moss & Barnett, A Professional Association, Minneapolis, Minnesota. EXPERTS The consolidated financial statements incorporated in this prospectus by reference to the Annual Report on Form 10-KSB for the year ended September 30, 2003 have been so incorporated in reliance on 6 the report of Grant Thornton LLP, independent certified public accountants, given on the authority of said firm as experts in auditing and accounting. MATERIAL CHANGES There have been no material changes in the financial condition of the Company since its Report on Form 10-KSB for the fiscal year ended September 30, 2003, except for the receipt of the proceeds of sale of Series B Preferred Stock and Warrants described in Form 8-K filed with the SEC on December 9, 2003. DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITY ACT LIABILITIES XATA's amended and restated Articles of Incorporation, as amended and restated, limit personal liability for breach of the fiduciary duty of its directors, to the fullest extent provided by the Minnesota Business Corporation Act. Articles eliminate the personal liability of directors for damages occasioned by breach of fiduciary duty, except for liability based on the director's duty of loyalty to XATA, liability for acts or omissions not made in good faith, liability for acts or omissions involving intentional misconduct, liability based on payments of improper dividends, liability based on violations of state securities laws, and liability occurring prior to the date such provision was added. Any amendment to or repeal of these provisions will not be applied retroactively to adversely affect any right or protection of a director with respect to any acts or omissions occurring prior to the amendment or repeal. The Minnesota Business Corporation Act and XATA's Bylaws provide that officers and directors of XATA have the right to indemnification from the Company for liability arising out of certain actions to the fullest extent permissible by law. This indemnification may be available for liabilities arising in connection with this offering. However, in the opinion of the Securities and Exchange Commission, indemnification for liabilities arising under the Securities Act of 1933 is against public policy as expressed in the Act and is therefore unenforceable. In addition, we have entered into indemnification agreements with Trident Capital, Inc. (the controlling entity of the holders of the Series B Convertible Preferred Stock) and the two persons designated as directors of the Company by Trident Capital which is intended to hold them harmless from liability they may incur as a "controlling person," in the case of Trident Capital, and as directors, with respect to the individual appointees. Section 302A.671 of the Minnesota Business Corporation Act (the "Minnesota Act") applies with certain exceptions, to any acquisition of voting stock of XATA, including the receipt of a proxy, from a person other than XATA, and other than in connection with certain mergers and exchanges to which XATA is a party, that results in the beneficial ownership by the acquiring party of 20% or more of the Company's voting stock then outstanding. Under Section 302A.671 any such acquisition must be approved by a majority vote of XATA's shareholders. In general, in the absence of such approval, shares exceeding the threshold are denied voting rights and may be redeemed by XATA at their then fair market value within 30 days after the acquiring person fails to give a timely information statement to the Company or after the date that shareholders vote not to grant voting rights to the acquiring person's shares. Section 302A.673 of the Minnesota Act generally prohibits any business combination by a Minnesota company with any shareholder that purchases 10% or more of the company's voting shares (an "interested shareholder") within four years following the interested shareholder's share acquisition 7 date, unless the business combination is approved by a committee of all of the disinterested members of the Board of Directors of the company before the share acquisition. These statutory provisions could delay or prevent a change in control of XATA. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission. You may read, or copy, any document we file at the public reference room maintained by the Commission at 450 Fifth Street NW, Washington, DC 20549, and at the following regional offices of the Commission: New York Regional Office, 233 Broadway, New York, New York 10279; and Chicago Regional Office, Citicorp Center, 5000 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of this information can be obtained by mail from the Commission's Public Reference Branch at 450 Fifth Street NW, Washington, DC 20549. In addition, our filings with the Commission are also available to the public on the Commission's internet website at http://www.sec.gov. We have filed with the Commission a registration statement on Form S-3 under the Securities Act of 1933 with respect to the securities offered in this offering. This prospectus does not contain all of the information set forth in the registration statement and its exhibits and schedules. Statements made by us in this prospectus as to the contents of any contract, agreement or other document referred to in this prospectus are not necessarily complete. For a more complete description of these contracts, agreements or other documents, you should carefully read the exhibits to the registration statement. The registration statement, together with its exhibits and schedules, which we filed with the Commission, may also be reviewed and copied at the public reference facilities of the Commission located at the addresses set forth above. Please call the Commission at 1-800-SEC-0330 for further information on its public reference facilities. The SEC allows us to "incorporate by reference" the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and information we later file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings we will make with the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act until this offering is complete: o Our Annual Report on Form 10-KSB for the fiscal year ended September 30, 2003 (File No. 000-27166); o Our Quarterly Report on Form 10-QSB for the fiscal quarter ended December 31, 2003 (File No. 000-27166); and o The description of our common stock, which is contained in our Registration Statement on Form 8-A filed pursuant to Section 12 of the Exchange Act, as declared effective by the SEC on December 20, 1995, and any description of any of our securities which is contained in any registration statement filed after the date hereof under Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating any such description. 8 PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION SEC registration fee $ 972.00 Legal fees and expenses $2,000.00 Accounting fees and expenses $2,000.00 Printing expenses $ 25.00 --------- TOTAL $4,997.00 =========
The Company will bear all of the costs and expenses of the Offering. The selling stockholders will not pay any of the expenses of the Offering. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Unless prohibited in a corporation's articles or bylaws, Minnesota Statutes Section 302A.521 requires indemnification of officers, directors, employees and agents, under certain circumstances, against judgments, penalties, fees, settlements and reasonable expenses (including attorneys' fees and disbursements) incurred by such person in connection with a threatened or pending proceeding with respect to the acts or omissions of such person in his or her official capacity. The general effect of Minnesota Statutes Section 302A.521 is to reimburse (or pay on behalf of) directors and officers of the Registrant any personal liability that may be imposed for certain acts performed in their capacity as directors and officers of the Registrant, except where such persons have not acted in good faith. The Bylaws of the Registrant provide for such indemnification to the maximum extent permitted by Minnesota Statutes. In addition, we have entered into indemnification agreements with Trident Capital, Inc. (the controlling entity of the holders of our Series B Convertible Preferred Stock) and the persons designated as directors of the Company by Trident Capital which is intended to hold them harmless from liability they may incur as a "controlling person," in the case of Trident Capital, and as directors, with respect to the individual appointees. ITEM 16. EXHIBITS 4.2 Form of Convertible Preferred Stock* 4.2.1 Amendment to Convertible Preferred Stock** 4.3 Form of Investor Warrant* 4.4 Form of Placement Agent Warrant* 5.1 Opinion of Moss & Barnett, A Professional Association 23.1 Consent of Grant Thornton LLP 23.2 Consent of Moss & Barnett, A Professional Association (included in Exhibit 5.1) * Incorporated by reference to the exhibit of the same number filed by the Company with Form 8-K on December 9, 2003. ** Incorporated by reference to the exhibit of the same number filed by the Company with Form 10-QSB on February 13, 2004. 9 ITEM 17. UNDERTAKINGS The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs a(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 10 Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 15 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 11 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly authorized this Pre-effective Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Minneapolis, State of Minnesota, on March 9, 2004. XATA CORPORATION By: /s/ Craig S. Fawcett ----------------------------------------- Craig S. Fawcett, Chief Executive Officer 12 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Craig S. Fawcett and John G. Lewis and each of them acting individually, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Pre-effective Amendment No. 1 to Registration Statement has been signed by the following persons in the capacities on this 9th day of March, 2004.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Craig S. Fawcett Chief Executive Officer and President - -------------------------------------------- (Principal executive officer) Craig S. Fawcett /s/ John G. Lewis Chief Financial Officer, Treasurer and - -------------------------------------------- Secretary (Principal accounting and John G. Lewis financial officer) * /s/ Stephen A. Lawrence Chairman of the Board of Directors - -------------------------------------------- Stephen A. Lawrence * /s/ Roger W. Kleppe Director - -------------------------------------------- Roger W. Kleppe * /s/ Carl M. Fredericks Director - -------------------------------------------- Carl M. Fredericks
13 * /s/ Richard L. Bogen Director - -------------------------------------------- Richard L. Bogen * /s/ Charles Ray Stamp, Jr. Director - -------------------------------------------- Charles Ray Stamp, Jr. * /s/ Christopher P. Marshall Director - -------------------------------------------- Christopher P. Marshall *Executed by the undersigned as attorney-in-fact for the named signatory /s/ John G. Lewis March 9, 2004 - --------------------------------------------
14 EXHIBIT INDEX
Exhibit No. Description of Exhibits - ----------- ----------------------- 5.1 Opinion of Moss & Barnett, a Professional Association 23.1 Consent of Grant Thornton LLP
15 EX-5.1 3 c81874a1exv5w1.txt OPINION OF MOSS & BARNETT, A PROFESSIONAL ASSOC. EXHIBIT 5.1 March 10, 2004 XATA Corporation 151 E. Cliff Road, Suite 10 Burnsville, MN 55337 Re: Form S-3 Registration Statement Ladies and Gentlemen: We have acted as counsel for XATA Corporation, a Minnesota corporation (the "Company"), in connection with the preparation of the Company's Registration Statement on Form S-3 (the "Registration Statement") to be filed with the Securities and Exchange Commission. The Registration Statement relates to the re-sale of up to 2,864,851 shares (the "Shares") of common stock, par value $.01 per share, of the Company issuable upon the conversion of preferred stock (the "Preferred Stock") and exercise of warrants (the "Warrants"). As such counsel, we have examined and relied upon such records, documents, certificates and other instruments as in our judgment are necessary or appropriate to form the basis for the opinions hereinafter set forth. In all such examinations, we have assumed the genuineness of signatures on original documents and the conformity to such original documents of all certified, conformed, or photographic copies submitted to us, and as to certificates of public officials, we have assumed the same to have been properly given and to be accurate. For purposes of this opinion, we have assumed the following: (i) the Shares that may be issued upon the conversion of Preferred Stock and exercise of Warrants will continue to be duly authorized on the dates of such issuance and (ii) each share of Preferred Stock and each Warrant has been duly executed and delivered by the Company, and is validly issued, fully paid and non-assessable, and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, general equitable principles and the discretion of courts in granting equitable remedies. The opinions expressed herein are limited in all respects to the federal laws of the United States of America and the Minnesota Business Corporation Act, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect which such laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein. Based upon the foregoing and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that: (a) The Shares are duly authorized; and (b) When the Shares are issued upon conversion of the Preferred Stock and exercise of the Warrants, such Shares will be validly issued, fully paid and non-assessable. This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in laws that occur which could affect the opinions contained herein. This letter is being rendered solely for the benefit of XATA Corporation in connection with the matters addressed herein. This opinion may not be furnished to or relied upon by any person or entity for any purpose without our prior written consent. We consent to the filing of this opinion as an exhibit to the Registration Statement. We also consent to the reference to our name under the caption "Legal Matters" in the prospectus contained in the Registration Statement. Very truly yours, MOSS & BARNETT, A Professional Association /s/ Janna R. Severance 2 EX-23.1 4 c81874a1exv23w1.txt CONSENT OF GRANT THORNTON LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS We have issued our report dated November 1, 2003 (except for Note 10 as to which the date is December 23, 2003) accompanying the financial statements of XATA Corporation appearing in the 2003 Annual Report of the Company to its shareholders on Form 10-KSB for the year ended September 30, 2003 which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference in the Registration Statement of the aforementioned report and to the use of our name as it appears under the caption "Experts." /s/ GRANT THORNTON LLP Minneapolis, Minnesota March 9, 2004 -----END PRIVACY-ENHANCED MESSAGE-----