VOTING AGREEMENT
Exhibit
4.2
This Voting Agreement (this “Voting Agreement”) is made as of the 29th day of July,
2004, among AeroVironment, Inc., a California corporation (the “Company”), the
Shareholders, severally and not jointly, listed on Exhibit A hereto, each of which is
herein referred to as an “Shareholder” and all of which are collectively referred to herein
as the “Shareholders,” the Xxxxxxx Family Limited Partnership (the “Purchaser”), of
which the Xxx Xxxxxx (“Conver”), the Chief Executive Officer of the Company is a limited
partner, and Conver.
RECITALS
A. Concurrently with the execution and delivery of this Voting Agreement, the Shareholders are
entering into a Stock Transfer Agreement (the “Stock Transfer Agreement”) pursuant to which
84,238 shares of the Company’s Common Stock, no par value (the “Common Stock”) are being
transferred from the Shareholders to the Purchaser.
B. The Shareholders, the Purchaser and Conver wish to facilitate the management and operation
of the Company and the exercise of rights relating to the Common Stock held of record or
beneficially by them.
AGREEMENT
NOW, THEREFORE, the parties hereby agree as follows:
1. Shares Subject to Agreement. Each Shareholder and the Purchaser agrees to hold all
of its shares of Company capital stock, whether now owned or hereafter acquired (hereinafter
referred to as the “Voting Shares”), subject to, and to vote the Voting Shares in
accordance with, the provisions of this Voting Agreement.
2. Obligations to Vote Voting Shares for Specific Nominee. At any annual or special
meeting called, or in connection with any other action (including the execution of written
consents) of the Company taken for any purpose (a “Shareholder Vote”), each of the
Shareholders and the Purchaser agrees to vote its Voting Shares in the manner directed by Conver.
Notwithstanding the foregoing, no delegation of voting power under this Agreement is intended or
shall operate to deprive any Shareholder or the Purchaser of any of the protections afforded a
minority shareholder under state or federal law (including without limitation, any rights of
appraisal or protections in the event of a “squeeze-out” merger) and neither any Shareholder nor
the Purchaser shall be required to vote the Voting Shares in favor of any matter as to which it
intends to exercise appraisal rights. Subject to the foregoing, each of the Shareholders and the
Purchaser shall vote as directed by Conver that number of the Voting Shares (taking into
consideration the shares of capital stock held of record or beneficially by the Purchaser, Conver,
affiliates of Conver (including without limitation the Conver Family Trust and any successor
entity) and any member of Conver’s “immediate family” (as such term is defined in Rule 16(a)-1(e)
of the Securities Exchange Act of 1934, as amended from time to time) (the “Purchaser
Affiliated Entities”) and assuming the Purchaser Affiliated Entities will vote all such shares
in the manner in which the Shareholders have been directed as to such matter) as are necessary to
approve the matter before the Shareholder Vote.
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3. Procedure. The Company shall provide Conver with advance written notice of the
taking of any Shareholder Vote which shall include in reasonable detail the matters to be
considered at the Shareholder Vote. Conver shall thereafter provide the Shareholders and the
Purchaser with reasonable notice in writing directing them as to the manner in which their Voting
Shares are to be voted on the matter(s) to be considered at the Shareholder Vote (the
“Notice”). Each of the Shareholders and the Purchaser hereby agree that they will not
take, and are not required to take, any action in connection with a Stockholder Vote unless and
until they receive the Notice from Conver related to such Stockholder Vote. Nothing herein shall
require any Shareholder or the Purchaser to attend shareholder meetings in person, and any of them
may discharge their obligations hereunder by executing proxies in lieu of attending such meetings.
4. Termination. This Voting Agreement shall terminate upon the earliest to occur of
(a) a Qualified Liquidity Event (as defined in the Transfer Agreement); or (b) in the sole
discretion of the Shareholders, the death or incapacity of Conver prior to the death or incapacity
of Xxxx X. XxxXxxxxx; or (c) following July 29, 2014, in the sole discretion of the Shareholders,
by providing written notice to the Company, the Purchaser and Conver. Notwithstanding the
foregoing, if this Voting Agreement is terminated under Section 4(b) or Section 4(c) and the Put is
not thereafter consummated after the Put has been timely exercised and a Put Closing Date is set
(as defined and described in Section 3(d) of the Stock Transfer Agreement), this Voting Agreement
shall continue in full force and effect until such time as the payment set forth in Section 3(d) of
the Stock Transfer Agreement has been made in full.
5. Successors in Interest.
5.1 The provisions of this Voting Agreement shall be binding upon the successors in interest
to any of the Voting Shares. Nothing herein shall limit the right of a Shareholder to transfer his
or her interest in the Voting Shares so long as any transferee agrees to be bound by all the
applicable provisions hereof. The Company shall not permit the transfer of any of the Voting
Shares on its books or issue a new certificate representing any of the Voting Shares unless and
until the person to whom such security is to be transferred shall have executed a written agreement
pursuant to which such person agrees to be bound by all the applicable provisions hereof.
5.2 Each certificate representing any of the Voting Shares shall be marked by the Company with
a legend reading as follows:
“THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT (A COPY OF WHICH MAY
BE OBTAINED FROM THE ISSUER) AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON
HOLDING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE
PROVISIONS OF SAID VOTING AGREEMENT.”
5.3 The rights set forth in this Voting Agreement with respect to Conver shall be exercisable
by the personal representative of his estate (in the event of his death) or his guardian ( in the
event of his incapacity).
6. Miscellaneous.
6.1 Governing Law. This Voting Agreement shall be governed in all respects by the
laws of the State of California without regard to choice of laws or conflict of laws provisions
thereof.
6.2 Successors and Assigns. Except as otherwise provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs,
executors, and administrators of the parties hereto. Nothing in this Voting Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this
Voting Agreement, except as expressly provided by this Voting Agreement.
6.3 Entire Agreement. This Voting Agreement and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement among the parties with
regard to the subjects hereof and thereof.
6.4 Notices, Etc. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid,
return receipt requested, or otherwise delivered by hand or by messenger, addressed (a) if to a
Shareholder, the Purchaser or Conver, at such address as is set forth on Exhibit A, or at
such other address as may be furnished to the other parties to this Voting Agreement in writing, or
(b) if to the Company, at its address set forth on the signature page of this Voting Agreement
addressed to the attention of the Corporate Secretary, or at such other address as the Company
shall have furnished to the other parties to this Voting Agreement. Unless specifically stated
otherwise, if notice is provided by mail, it shall be deemed to be delivered upon proper deposit in
a mailbox, and if notice is delivered by hand or by messenger, it shall be deemed to be delivered
upon actual delivery.
6.5 Delays or Omissions. No delay or omission to exercise any right, power, or remedy
accruing to any party upon any breach or default of another party under this Voting Agreement shall
impair any such right, power, or remedy of such party, nor shall it be construed to be a waiver of
any such breach or default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of
any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent, or
approval of any kind or character on the part of any party of any breach or default under this
Voting Agreement, or any waiver on the part of any party of any provisions or conditions of this
Voting Agreement, must be in writing and shall be effective only to the extent specifically set
forth in such writing or as provided in this Voting Agreement. All remedies, either under this
Voting Agreement or by law or otherwise afforded to any party, shall be cumulative and not
alternative.
6.6 Dispute Resolution Fees. If any action at law or in equity is necessary to enforce
or interpret the terms of this Voting Agreement, the prevailing party shall be entitled to
reasonable attorney’s fees, costs, and disbursements in addition to any other relief to which such
party may be entitled.
6.7 Counterparts. This Voting Agreement may be executed in any number of counterparts
and signatures may be delivered by facsimile, each of which may be executed by less than all
parties, each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
6.8 Severability. If any provision of this Voting Agreement becomes or is declared by
a court of competent jurisdiction to be illegal, unenforceable, or void, portions of such
provision, or such provision in its entirety, to the extent necessary, shall be severed from this
Voting Agreement and the balance of this Voting Agreement shall be enforceable in accordance with
its terms.
6.9 Titles and Subtitles. The titles and subtitles used in this Voting Agreement are
used for convenience only and are not to be considered in construing or interpreting this Voting
Agreement.
6.10 Amendment and Waiver. Any provision of this Voting Agreement may be amended or
waived (either generally or in a particular instance and either retroactively or prospectively)
with the written consent of the Company, the Purchaser, Conver and any individual Shareholder or
group of Shareholders holding, in the aggregate, more than fifty percent (50%) of the outstanding
shares held by all Shareholders. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each Shareholder, the Purchaser, Conver and the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first above
written.
| AEROVIRONMENT, INC. | ||||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||
| Name: | Xxxxxxx Xxxxxx | |||||
| Title: | CFO | |||||
| SHAREHOLDERS: | P. and X. XxxXxxxxx Living Trust (Restated) | |||||
| By: | /s/ Xxxx X. XxxXxxxxx and /s/ Xxxxxx XxxXxxxxx | |||||
| Its: | Co-trustees | |||||
| Address: | 000 Xxxxxxxx Xxxxxxx | |||||
| Xxxxxxxx, XX 00000 | ||||||
| /s/ Xxxxxx XxxXxxxxx | ||||||
| Xxxxxx XxxXxxxxx | ||||||
| Address: | 0000 Xxxxxx Xx. X.X. | |||||
| Xxxxxxx, XX 00000 | ||||||
| /s/ Xxxxx XxxXxxxxx | ||||||
| Xxxxx XxxXxxxxx | ||||||
| Address: | 0000 Xxxxxx Xx. | |||||
| Xxxxxxxx, XX 00000 | ||||||
| /s/ Xxxxxxxx XxxXxxxxx | ||||||
| Xxxxxxxx XxxXxxxxx | ||||||
| Address: | 000 Xxxxxxxx Xxxxxxx | |||||
| Xxxxxxxx, XX 00000 | ||||||
| PURCHASER: | Xxxxxxx Family Limited Partnership | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | ||||||
| Name: | Xxxxxxx X. Xxxxxx | ||||||
| Title: | Trustee of Xxxxxxx Family Limited Partnership and the Xxxxxxx Management Trust | ||||||
| Address: | 0000 Xxxxxxxxxx Xxxx Xxxxx | ||||||
| Xxxxxxxxxx, XX 00000 | |||||||
| CONVER: | Xxx Xxxxxx | |||||||||
| /s/ Xxx Xxxxxx | ||||||||||
| Address: | 0000 Xxxxxxxxxx Xxxx Xxxxx | |||||||||
| Xxxxxxxxxx, XX 00000 | ||||||||||
EXHIBIT A
SCHEDULE OF SHAREHOLDERS
P. and X. XxxXxxxxx Living Trust (Restated)
Xxxxxx XxxXxxxxx
Xxxxx XxxXxxxxx
Xxxxxxxx XxxXxxxxx
