THIS SEVERANCE
AGREEMENT (“Agreement”) is made and entered into
effective May 7, 2009 by and between XATA Corporation
(“XATA”, or the “Company”) and David Gagne
(“Employee”). This Agreement establishes certain
payment provisions in the event that Employee is separated from
employment with XATA under the identified circumstances. This
Agreement does not create a contract of employment, and Employee
continues as an employee at will.
“Change of
Control” means any of the following events:
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(a)
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A
sale, consolidation, merger, acquisition or affiliation which
results in the stockholders of the Company (determined immediately
prior to the consummation of the transaction) holding immediately
after consummation of such transaction less than 45% of the total
outstanding capital stock of the surviving or successor corporation
in the transaction (the “Surviving Corporation”);
or
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(b)
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A
sale, consolidation, merger, or acquisition in which the Company
becomes accountable to, or a part of, a newly created company or
controlling organization where at least 51% of the members of the
Board of the newly created Company or controlling organization were
not members of the Company’s Board immediately prior to such
sale, consolidation, merger, or acquisition; or
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(c)
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A
sale or other disposition by the Company of all or substantially
all of the assets of the Company.
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“Good
Reason” shall mean any of the following events:
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(a)
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Assignment to Employee by XATA of
duties which are inconsistent with Employee’s position,
duties, responsibilities, and status with XATA, except in
connection with the termination of his employment for Disability
(as defined below) or Cause, or
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(b)
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Any
failure of XATA to continue in effect Employees then current
compensation, unless such compensation is reduced as part of a
Companywide reduction for similar executives.
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2. Termination and
Severance
If (a) XATA
terminates Employee’s employment for any reason other than a
Cause, or (b) Employee is terminated within six-months following a
Change of Control, or (c) Employee terminates his employment
for Good Cause, XATA, or its successor entity shall:
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(i)
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pay
Employee as severance pay each month for twelve
(12) consecutive months following his termination or
resignation his monthly base salary in effect at the time of
separation, less customary withholdings, beginning one
(1) month after termination, and;
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(ii)
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pay
all or a portion of any bonus due Employee pursuant to any bonus
plan or arrangement established prior to termination, to the extent
earned or performed based upon the requirements or crite
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